SB122 By Senators Orr, Sanford, Livingston, Scofield, Stutts and Melson RFD Fiscal Responsibility and Economic Development Rd 1 02-FEB-16

SYNOPSIS: This bill would revise portions of the workers' compensation law to limit an employer's liability for permanent total disability benefits after the sixty-fifth birthday of the employee, and to limit the obligation of an employer to pay medical benefits if an employee does not seek medical attention for a claimed work injury within a certain time period.

A BILL TO BE ENTITLED AN ACT

To amend Sections 25-5-57 and 25-5-77, Code of Alabama 1975, relating to workers' compensation; to limit an employer's liability for permanent total disability benefits after an employee reaches the age of 65; and to limit the obligation of an employer to pay the medical benefits of an employee who does not promptly seek medical attention for a claimed work injury.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Sections 25-5-57 and 25-5-77 of the Code of Alabama 1975, are amended to read as follows:

§25-5-57.

"(a) Compensation schedule. Following is the schedule of compensation:

"(1) TEMPORARY TOTAL DISABILITY. For injury producing temporary total disability, the compensation shall be 66 2/3 percent of the average weekly earnings received at the time of injury, subject to a maximum and minimum weekly compensation as stated in Section 25-5-68, but if at the time of injury the employee received average weekly earnings of less than the minimum stated in Section 25-5-68, then he or she shall receive the full amount of the average weekly earnings per week. This compensation shall be paid during the time of the disability, but at the time as a temporary total disability shall become permanent, compensation for the continued total disability shall be governed by (a)(4) of this section with respect to permanent total disability. Payments are to be made at the intervals when the earnings were payable, as nearly as may be, unless the parties otherwise agree.

"(2) TEMPORARY PARTIAL DISABILITY.

"a. Amount and Duration of Compensation. For temporary partial disability, the compensation shall be 66 2/3 percent of the difference between the average weekly earnings of the worker at the time of the injury and the average weekly earnings he or she is able to earn in his or her partially disabled condition. This compensation shall be paid during the period of the disability, but not beyond 300 weeks. Payments shall be made at the intervals when the earnings were payable, as nearly as may be, unless the parties otherwise agree, and shall be subject to the same maximum weekly compensation as stated in Section 25-5-68.

"b. Effect of Change in Employment. If the injured employee who is receiving compensation for temporary partial disability leaves the employment of the employer by whom he or she was employed at the time of the accident for which the compensation is being paid, he or she shall, upon securing employment elsewhere, give to the former employer an affidavit in writing containing the name of his or her new employer, the place of employment, and the amount of wages being received at the new employment, and until he or she gives the affidavit, the compensation for temporary partial disability shall cease. The employer for whom the employee was employed at the time of the accident for which the compensation is being paid may also at any time demand of the employee an additional affidavit, in writing, containing the name of his or her employer, the place of his or her employment, and the amount of wages he or she is receiving; and if the employee upon demand fails or refuses to make and furnish the affidavit, his or her right to compensation for temporary partial disability shall cease until the affidavit is made and furnished.

"(3) PERMANENT PARTIAL DISABILITY.

"a. Amount and Duration of Compensation. For permanent partial disability, the compensation shall be based upon the extent of the disability. In cases included in the following schedule, the compensation shall be 66 2/3 percent of the average weekly earnings, during the number of weeks set out in the following schedule:

"1. For the loss of a thumb, 62 weeks.

"2. For the loss of a first finger, commonly called the index finger, 43 weeks.

"3. For the loss of a second finger, 31 weeks.

"4. For the loss of a third finger, 22 weeks.

"5. For the loss of a fourth finger, commonly called the little finger, 16 weeks.

"6. The loss of the first phalange of the thumb or of any finger shall be considered as equal to the loss of one half of the thumb or finger, and compensation shall be paid at the prescribed rate during one half of the time specified above for the thumb or finger.

"7. The loss of two or more phalanges shall be considered as the loss of the entire finger or thumb, but in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand.

"8. For the loss of a great toe, 32 weeks.

"9. For the loss of any of the toes other than the great toe, 11 weeks.

"10. The loss of the first phalange of any toe shall be considered to be equal to the loss of one half of the toe, and compensation shall be paid at the prescribed rate during one half the time prescribed above for the toe.

"11. The loss of two or more phalanges shall be considered as the loss of an entire toe.

"12. For the loss of a hand, 170 weeks.

"13. For the loss of an arm, 222 weeks.

"14. For the loss of a foot, 139 weeks.

"15. Amputation between the elbow and wrist shall be considered as the equivalent to the loss of a hand, and amputation between the knee and ankle shall be considered as the equivalent of the loss of a foot.

"16. For the loss of a leg, 200 weeks.

"17. For the loss of an eye, 124 weeks.

"18. For the complete and permanent loss of hearing in both ears, 163 weeks.

"19. For the complete and permanent loss of hearing in one ear, 53 weeks.

"20. For the loss of an eye and a leg, 350 weeks.

"21. For the loss of an eye and one arm, 350 weeks.

"22. For the loss of an eye and a hand, 325 weeks.

"23. For the loss of an eye and a foot, 300 weeks.

"24. For the loss of two arms, other than at the shoulder, 400 weeks.

"25. For the loss of two hands, 400 weeks.

"26. For the loss of two legs, 400 weeks.

"27. For the loss of two feet, 400 weeks.

"28. For the loss of one arm and the other hand, 400 weeks.

"29. For the loss of one hand and one foot, 400 weeks.

"30. For the loss of one leg and the other foot, 400 weeks.

"31. For the loss of one hand and one leg, 400 weeks.

"32. For the loss of one arm and one foot, 400 weeks.

"33. For the loss of one arm and one leg, 400 weeks.

"34. For serious disfigurement, not resulting from the loss of a member or other injury specifically compensated, materially affecting the employability of the injured person in the employment in which he or she was injured or other employment for which he or she is then qualified, 66 2/3 percent of the average weekly earnings for the period as the court may determine, but not exceeding 100 weeks.

"b. Successive or Concurrent Temporary Total and Permanent Partial Disabilities Resulting from Same Injury. When a permanent partial disability, the number of weeks compensation for which is scheduled in subdivision (a)(3) of this section, follows or accompanies a period of temporary total disability resulting from the same injury, the number of weeks of the temporary total disability shall not be deducted from the number of weeks payable for the permanent partial disability.

"c. Concurrent Disabilities. If an employee sustains concurrent injuries resulting in concurrent disabilities, he or she shall receive compensation only for the injury which entitled him or her to the largest amount of compensation, but this paragraph shall not affect liability for the concurrent loss of more than one member for which members compensation is provided in the specific schedule.

"d. Loss of Use of Member. The permanent and total loss of the use of a member shall be considered as equivalent to the loss of that member, but in such cases the compensation specified in the schedule for such injury shall be in lieu of all other compensation, except as otherwise provided herein. For permanent disability due to injury to a member resulting in less than total loss of use of the member not otherwise compensated in this schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member which the extent of the injury to the member bears to its total loss.

"e. Effect of Refusal of Suitable Employment. If an injured employee refuses employment suitable to his or her capacity offered to or procured for him or her, he or she shall not be entitled to any compensation at any time during the continuance of the refusal, unless at any time, in the opinion of the judge of the circuit court of the county of his or her residence, the refusal is justifiable.

"f. Maximum and Minimum Compensation Awards. Compensation provided in this subsection (a) for loss of members or loss of use of members is subject to the same limitations as to maximum and minimum weekly compensation as stated in Section 25-5-68.

"g. Compensation for Permanent Partial Disabilities Not Enumerated. For all other permanent partial disabilities not above enumerated, the compensation shall be 66 2/3 percent of the difference between the average weekly earnings of the worker at the time of the injury and the average weekly earnings he or she is able to earn in his or her partially disabled condition, subject to the same maximum weekly compensation as stated in Section 25-5-68. If a permanent partial disability, compensation for which is not calculated by use of the schedule in subdivision (a)(3) of this section, follows a period of temporary total disability resulting from the same injury, the number of weeks of the temporary total disability shall be deducted from the number of weeks payable for the permanent partial disability. Compensation shall continue during disability, but not beyond 300 weeks.

"h. Affidavit of New Employment. If the injured employee leaves the services of the employer for whom he or she was working at the time of the accident and accepts employment elsewhere, he or she shall make and furnish affidavit as to his or her new employment in the manner as required in (a)(2) of this section.

"i. Return to Work. If, on or after the date of maximum medical improvement, except for scheduled injuries as provided in Section 25-5-57(a)(3), an injured worker returns to work at a wage equal to or greater than the worker's pre-injury wage, the worker's permanent partial disability rating shall be equal to his or her physical impairment and the court shall not consider any evidence of vocational disability. Notwithstanding the foregoing, if the employee has lost his or her employment under circumstances other than any of the following within a period of time not to exceed 300 weeks from the date of injury, an employee may petition a court within two years thereof for reconsideration of his or her permanent partial disability rating:

"(i) The loss of employment is due to a labor dispute still in active progress in the establishment in which he or she is or was last employed. For the purposes of this section only, the term "labor dispute" includes any controversy concerning terms, tenure, or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. This definition shall not relate to a dispute between an individual worker and his or her employer.

"(ii) The loss of employment is voluntary, without good cause connected with such work.

"(iii) The loss of employment is for a dishonest or criminal act committed in connection with his or her work, for sabotage, or an act endangering the safety of others.

"(iv) The loss of employment is for actual or threatened misconduct committed in connection with his or her work after previous warning to the employee.

"(v) The loss of employment is because a license, certificate, permit, bond, or surety which is necessary for the performance of such employment and which he or she is responsible to supply has been revoked, suspended, or otherwise become lost to him or her for a cause.

"The burden of proof is on the employer to prove, by clear and convincing evidence, that an employee's loss of employment was due to one of the causes (i) through (v) above. At the hearing, the court may consider evidence as to the earnings the employee is or may be able to earn in his or her partially disabled condition, and may consider any evidence of vocational disability. The fact the employee had returned to work prior to his or her loss of employment shall not constitute a presumption of no vocational impairment. In making this evaluation, the court shall consider the permanent restriction, if any, imposed by the treating physician under Section 25-5-77, as well as all available reasonable accommodations that would enable the employee in his or her condition following the accident or onset of occupational disease to perform jobs that he or she in that condition otherwise would be unable to perform, and shall treat an employee able to perform with such accommodation as though he or she could perform without the accommodation. Nothing contained in this section shall be construed as having any effect upon any evidentiary issues or claims made in third party actions pursuant to Section 25-5-11.

"(4) PERMANENT TOTAL DISABILITY.

"a. Amount, Duration, and Payment of Compensation. For permanent total disability, as defined in paragraph d. of this subdivision, the employee shall receive 66 2/3 percent of the average weekly earnings received at the time of the injury, subject to a maximum and minimum weekly compensation as stated in Section 25-5-68. Notwithstanding the foregoing, if at the time of injury the employee was receiving earnings of less than the minimum as stated in Section 25-5-68, then he or she shall receive the full amount of his or her earnings per week. This compensation shall be paid during the permanent total disability, as defined in paragraph d. of this subdivision. Payment of the compensation shall be made at the intervals when the earnings were payable, as nearly as may be, unless the parties otherwise agree. The payments, with the approval of the circuit judge or by the agreement of the parties, may be made monthly, quarterly, or otherwise as the parties may agree. Payments for permanent total disability shall not be ordered to be paid in a lump sum without the consent of both the employer and the employee. Notwithstanding the foregoing, the obligation of an employer to pay benefits based upon a permanent total disability shall continue during the permanent total disability of the employee, except that benefits based upon permanent total disability shall otherwise terminate upon either the date of the employee's sixty-fifth birthday or the date 500 weeks after the date of injury, whichever is longer.

"b. Alteration, Amendment, or Revision of Compensation. At any time, the employer may petition the court that awarded or approved compensation for permanent total disability to alter, amend, or revise the award or approval of the compensation on the ground that as a result of physical or vocational rehabilitation, or otherwise, the disability from which the employee suffers is no longer a permanent total disability and, if the court is so satisfied after a hearing, it shall alter, amend, or revise the award accordingly. If compensation for permanent total disability is being paid pursuant to a written agreement between employer and employee without approval, the employer may make application to the court that would have had jurisdiction to award the compensation to the employee to alter, amend, or revise the agreement on such grounds. If an employee is receiving benefits for permanent total disability other than as a result of an award or a written agreement between the employer and employee and if the employer terminates the payment of the benefits, the employee may, within two years of the last payment, petition the court to reinstate the benefits and, upon a showing that the permanent total disability still exists, shall be entitled to have the benefits reinstated effective the date of the last payment.

"c. Employees in Public Institutions. In case an employee who is permanently and totally disabled becomes an inmate of a public institution, no compensation shall be payable unless the employee has wholly dependent on him or her for support a person or persons named in Sections 25-5-61 and 25-5-62, whose dependency shall be determined as if the employee were deceased, in which case the compensation provided for in this subdivision shall be paid for the benefit of the person so dependent, during dependency, in the manner so ordered by the court, while the employee is an inmate in the institution. Nothing contained herein shall be construed to deprive a permanently and totally disabled employee who has no dependent named in Sections 25-5-61 and 25-5-62 from receiving benefits to which he or she would otherwise be entitled if the employee, although an inmate of a public institution, is paying or on whose behalf funds are paid from any source to the public institution the normal and customary charge for the services rendered by the public institution. Normal and customary charge shall mean that charge actually made by the public institution to persons able to pay for the services rendered them whether the charge actually covers the expense of the upkeep of the inmate or not. If the employee has had a guardian appointed by a court of competent jurisdiction, the workers' compensation payments shall be directly paid to the guardian.

"d. Definition. The total and permanent loss of the sight of both eyes or the loss of both arms at the shoulder or any physical injury or mental impairment resulting from an accident, which injury or impairment permanently and totally incapacitates the employee from working at and being retrained for gainful employment, shall constitute prima facie evidence of permanent total disability but shall not constitute the sole basis on which an award of permanent total disability may be based. Any employee whose disability results from an injury or impairment and who shall have refused to undergo physical or vocational rehabilitation or to accept reasonable accommodation shall not be deemed permanently and totally disabled.

"e. Second Permanent Injuries Generally. If an employee has a permanent disability or has previously sustained another injury than that in which the employee received a subsequent permanent injury by accident, as is specified in this section defining permanent injury, the employee shall be entitled to compensation only for the degree of injury that would have resulted from the latter accident if the earlier disability or injury had not existed.

"f. Second Permanent Injury in Same Employment Resulting in Permanent Total Disability. If an employee receives a permanent injury as specified in this section after having sustained another permanent injury in the same employment, and if the previous and subsequent injuries result in permanent total disability, compensation shall be payable for permanent total disability only.

"g. Concurrent Compensation Payments. If an employee receives an injury for which compensation is payable while he or she is still receiving or entitled to receive compensation for a previous injury in the same employment, he or she shall not at the same time be entitled to compensation for both injuries, unless the later injury is a permanent injury, as specified in this section, but he or she shall be entitled to compensation for that injury and from the time of that injury which will cover the longest period and the largest amount payable under this article and Article 4 of this chapter.

"If an employee receives a permanent injury as specified in this section, after having sustained another permanent injury in the same employment, he or she shall be entitled to compensation for both injuries, subject to paragraph e. of this subdivision, but the total compensation shall be paid by extending the period and not by increasing the amount of weekly compensation, and in no case for permanent partial disability exceeding 700 weeks.

"h. Effect of Rehabilitation or Recovery on Permanent Total Disability Benefits. If an employee who is receiving benefits for permanent total disability shall, as a result of physical or vocational rehabilitation or otherwise, obtain gainful employment, the obligation to pay permanent total disability benefits shall thereupon terminate; provided, that at any time that the employee's weekly wage from the employment shall be less than the employee's average weekly wage at the time of injury, the employer shall remain obligated to pay to the employee as compensation an amount equal to 66 2/3 percent of the difference, subject to each of the following limitations:

"1. The employer's liability for the payment of 66 2/3 percent of the difference shall continue for 200 weeks from the date of reemployment or 300 weeks from the date of injury, whichever is the longer period.

"2. In no event shall the amount of weekly benefits paid by the employer to the employee exceed the weekly benefit the employee was receiving for permanent total disability.

"3. No payments shall be due for any week the employee earns as much as or more than his or her average weekly wage at the time of injury. If the employee who obtains gainful employment suffered a permanent partial disability as specified in subsection (a), subdivision (3) of this section, the total amount of compensation paid for permanent total disability shall not be less than that amount which would have been payable for the permanent partial disability.

"i. Affidavit of Gainful Employment. If an employee who is receiving benefits for permanent total disability shall, as the result of physical or vocational rehabilitation, accommodation, or otherwise, obtain gainful employment with an employer other than with his or her former employer, he or she shall, upon securing employment, give to his or her former employer an affidavit in writing containing the name of his or her new employer, the place of employment and the amount of wages being received at the new employment. Until he or she gives the affidavit, the compensation for permanent total disability shall cease. The employer for whom the employee was employed at the time of the accident for which compensation is being paid may also at any time demand of the employee additional affidavit, in writing, containing the name of his or her employer, the place of his or her employment, and the amount of wages he or she is receiving. If the employee, upon demand, fails or refuses to make and furnish the affidavit, his or her rights to compensation shall cease until the affidavit is made and furnished.

"(5) DEATH FOLLOWING DISABILITY. If an employee sustains an injury occasioned by an accident arising out of and in the course of his or her employment and, during the period of disability caused thereby, death results proximately therefrom, all payments previously made as compensation for the injury shall be deducted from the compensation, if any, due on account of death. If an employee who sustains a permanent partial or permanent total disability, the degree of which has been agreed upon by the parties or has been ascertained by the court, and death results not proximately therefrom, the employee's surviving spouse or dependent children or both shall be entitled to the balance of the payments which would have been due and payable to the worker, whether or not the decedent employee was receiving compensation for permanent total disability, not exceeding, however, the amount that would have been due the surviving spouse or dependent children or both if death had resulted proximately from an injury on account of which compensation is being paid to an employee.

"(6) HERNIA.

"a. Proof. For hernia resulting from injury by an accident arising out of and in the course of the employee's employment, it must be definitely proven to the satisfaction of the court all of the following:

"1. That there was an injury resulting in hernia.

"2. That the hernia appeared suddenly.

"3. That it was accompanied by pain.

"4. That the hernia immediately followed an accident.

"5. That the hernia did not exist prior to the accident for which compensation is claimed.

"b. Treatment. All hernia, inguinal, femoral, or otherwise, proved to be the result of an injury by accident arising out of and in the course of the employment, shall be treated in a surgical manner by radical operation. If the injured employee refuses to undergo the radical operation for the cure of the hernia, no compensation will be allowed during the time the refusal continues. If, however, it is shown that the employee has some chronic disease or is otherwise in physical condition that the court considers it unsafe for the employee to undergo the operation, the employee shall be paid as otherwise provided in this chapter.

"(b) Computation of compensation; determination of average weekly earnings. Compensation under this section shall be computed on the basis of the average weekly earnings. Average weekly earnings shall be based on the wages, as defined in Section 25-5-1(6) of the injured employee in the employment in which he or she was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by 52, but if the injured employee lost more than seven consecutive calendar days during the period, although not in the same week, then the earnings for the remainder of the period, although not in the same week, then the earnings for the remainder of the 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided results just and fair to both parties will thereby be obtained. Where by reason of the shortness of the time during which the employee has been in the employment of his or her employer or the casual nature or terms of the employment it is impracticable to compute the average weekly earnings as above defined, regard shall be had to the average weekly amount which during the 52 weeks prior to the injury was being earned by a person in the same grade, employed at the same work by the same employer, and if there is no person so employed, by a person in the same grade employed in the same class of employment in the same district. Whatever allowances of any character made to an employee in lieu of wages are specified as part of the wage contract shall be deemed a part of his or her earnings.

"(c) Setoff for other recovery. In calculating the amount of workers' compensation due:

"(1) The employer may reduce or accept an assignment from an employee of the amount of benefits paid pursuant to a disability plan, retirement plan, or other plan providing for sick pay by the amount of compensation paid, if and only if the employer provided the benefits or paid for the plan or plans providing the benefits deducted.

"(2) The employee shall forfeit to the employer all compensation paid for any period to which is attributed any award of back pay either by a court, administrative agency, arbitration, or settlement, provided, however, social security payments shall not be included herein.

"(3) If an employer continues the salary of an injured employee during the benefit period or pays similar compensation during the benefit period, the employer shall be allowed a setoff in weeks against the compensation owed under this article. For the purposes of this section, voluntary contributions to a Section 125-cafeteria plan for a disability or sick pay program shall not be considered as being provided by the employer.

§25-5-77.

"(a) In addition to the compensation provided in this article and Article 4 of this chapter, the employer, where applicable, shall pay the actual cost of the repair, refitting, or replacement of artificial members damaged as the result of an accident arising out of and in the course of employment, and the employer, except as otherwise provided in this amendatory act, shall pay an amount not to exceed the prevailing rate or maximum schedule of fees as established herein of reasonably necessary medical and surgical treatment and attention, physical rehabilitation, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus as the result of an accident arising out of and in the course of the employment, as may be obtained by the injured employee or, in case of death, obtained during the period occurring between the time of the injury and the employee's death therefrom. If the employee is dissatisfied with the initial treating physician selected by the employer and if further treatment is required, the employee may so advise the employer, and the employee shall be entitled to select a second physician from a panel or list of four physicians selected by the employer. If surgery is required and if the employee is dissatisfied with the designated surgeon, he or she may so advise the employer, and the employee shall be entitled to select a second surgeon from a panel or list of four surgeons selected by the employer. If four physicians or surgeons are not available to be listed, the employer shall include on the list as many as are available. The four physicians or surgeons selected by the employer hereunder shall not be from or members of the same firm, partnership, or professional corporation. The total liability of the employer shall, unless otherwise provided in this chapter, not exceed the prevailing rate or the maximum schedule of fees as established herein. Notwithstanding the foregoing, in ascertaining the prevailing rate of reimbursement or payment with regard to participating hospitals and ambulatory surgical centers or outpatient rehabilitation centers licensed by the State of Alabama, as well as diagnostic facilities accredited by the Commission on Accreditation of Rehabilitation Facilities, the prevailing rate shall be negotiated with each individual hospital, ambulatory surgical center, licensed outpatient rehabilitation facility, or diagnostic facility based on that institution's treatment of comparable type cases for the 12-month period immediately preceding August 1, 1992. These rates shall be updated every 12 months thereafter. Initial rates shall be established within six months of August 1, 1992. For those non-participating hospitals the prevailing rate shall be determined by a committee. In the first year following August 1, 1992, the committee shall be composed of five members. The director shall appoint one member from the Department of Industrial Relations and two members from the community in which the non-participating hospital is located. The non-participating hospital shall appoint two members. This committee shall by a majority vote establish the maximum rates of reimbursement or payment for the non-participating hospital, and the hospital shall be bound for one year by the determined rates of reimbursement or payment for workers' compensation cases. If, following the first year after the rates were established by this committee, the hospital is again non-participating, then another committee shall be appointed. This second committee shall have three members selected by the non-participating hospital and two members selected by the director. The committee composition shall alternate as above described each year the hospital is non-participating. The total liability of the employer shall not exceed the rates established by the committee. This committee, in determining the rates of reimbursement or payments to the hospital, may consider such factors as the size, staffing, and medical equipment of the hospital, and any other factors which the committee may consider relevant. If an insurer of the employee or a benefit association has paid or is liable for the employee's medical, surgical, and hospital service or for a part thereof, or if the employee is entitled to the same or a part thereof, from any source whatever by virtue of any agreement or understanding or law, state or federal, without any loss of benefit to the employee, the employer shall not be required to pay any part of the expense. If the benefits are insufficient to pay all the employee's expense, the employer shall be liable for the deficiency only. All cases of dispute as to the necessity and value of the services shall be determined by the tribunal having jurisdiction of the claim of the injured employee for compensation.

"(b) If requested to do so by the employer, the injured employee shall submit to examination by the employer's physician at all reasonable times, but the employee shall have the right to have a physician of his or her own selection present at the examination, in which case the employee shall be liable to the physician of his or her own selection for his or her services. The employer shall pay for the services of the physician making the examination at the instance of the employer. If a dispute arises as to the injury, or as to the extent of the disability therefrom, the court may, at the instance of either party or of its own motion, appoint a neutral physician of good standing and ability to make an examination of the injured employee and to report his or her findings to the court, the expense of which examination shall be borne equally by the parties. If the injured employee refuses to comply with reasonable request for examination, or refuses to accept the medical service or physical rehabilitation, which the employer elects to furnish under this chapter, the employee's right to compensation shall be suspended and no compensation shall be payable for the period of the refusal. A physician whose services are furnished or paid for by the employer, or a physician of the injured employee who treats or makes or is present at any examination of an injured employee may be required to testify as to any knowledge obtained by him or her in the course of the treatment or examination as the treatment or examination related to the injury or the disability arising therefrom. The physician shall, upon written request of the injured employee or his or her employer and without consent of or notice to the employee or employer not making the request, furnish the injured employee or his or her employer a written statement of his or her professional opinion as to the extent of the injury and disability. In all death claims where the cause of death is obscure or is disputed, any interested party may require an autopsy, the cost of which is to be borne by the party demanding the autopsy. The term "physicians" shall include medical doctor, surgeon, and chiropractor. A hospital, medical clinic, rehabilitation service, or other person or entity providing treatment to an employee or providing facilities at which the employee receives treatment shall, upon the written request of the employee or of the employer, furnish, at a reasonable cost, the employee or the employer a copy of the records, including X-rays and laboratory reports, relating to the treatment of the injured employee. The copy may be furnished without the consent of or notice to the employee or employer not making the request. A physician, hospital, medical clinic, rehabilitation service, or other person or entity providing written statement of professional opinion or copies of records pursuant to this subsection shall not be liable to any person for a claim arising out of the release of medical information concerning the employee.

"(c) If the employer so elects, the employee shall submit to and undergo vocational rehabilitation at the employer's expense through a vocational rehabilitation specialist, who shall be qualified to render competent vocational rehabilitation service. If an employee who is unable in the opinion of the treating physician to return to his or her former employment shall request vocational rehabilitation and if both a vocational rehabilitation specialist and a treating physician, the cost of whose service is the obligation of the employer under this section, shall express their opinions in writing that in the judgment of each of them vocational rehabilitation is reasonably calculated to restore the employee to gainful employment and is in the best interest of the employee, the cost of the rehabilitation shall be borne by the employer. The cost, where rehabilitation requires residence at or near a facility or institution away from the employee's customary residence, shall include reasonable charges for the employee's necessary board, lodging, and travel.

"(d) If an employee refuses, without the consent of the court, to accept vocational rehabilitation at the employer's request, the refusal shall result in loss of compensation for the period of refusal.

"(e) All disputes with regard to vocational rehabilitation may be submitted to the court for resolution.

"(f) The employer shall pay mileage costs to and from medical and rehabilitation providers at the same rate as provided by law for official state travel.

"(g) In a compensable workers' compensation claim, the injured employee shall not be liable for payment of any authorized and compensable medical expenses associated with the workers' compensation claim.

"(h) All undisputed medical reimbursements or payments shall be made within 25 working days of receipt of claims in the form specified in Section 25-5-3. There shall be added to any undisputed medical invoice which is not paid within 25 working days an amount equal to 10 percent of the unpaid balance.

If the employer or insurer responsible for payment of the claim fails to add the additional 10 percent to the claim as required by this section, the person, firm, corporation, or partnership providing the medical service for which payment has been delayed beyond the period specified in this section may file a written complaint stating that fact with the director. Upon investigation, if the director determines that the facts stated in the complaint are true, then in that event the director shall order the employer or insurer to pay to the provider the amount of the claim and any applicable penalty, and in addition may assess a civil monetary penalty in amount not to exceed $500 against the employer or insurer, payment of which shall be made to the director within 30 days of the notice of assessment.

"(i) Any party, including a health care provider, is entitled to a review by an ombudsman of medical services that are provided or for which authorization of payment is sought if any party or the health care provider has any of the following:

"(1) Been denied payment or had the charge reduced for medical services rendered.

"(2) Been denied authorization for the payment of services requested or performed when authorization is required.

"(3) Been ordered by the director to refund payments received for the provision of medical services.

"(4) A party to a medical dispute that remains unresolved after a review of medical services as provided by this section may petition the court for relief.

"(5) In any review under this subsection of medical services provided by a physician, any party to a dispute may request that the ombudsman consult with an independent medical expert for the purpose of obtaining advice and consultation on the resolution of any issue involving medical practice. If such a request is made, the ombudsman shall select an independent medical expert from among a list of at least three names provided by the Workers' Compensation Medical Services Board in a medical specialty appropriate to the issues raised in the dispute and shall secure a written opinion from the independent medical expert. In rendering a decision or recommendation, the ombudsman shall give full consideration to the opinion of the independent medical expert but shall not be bound by that opinion. The independent medical expert shall be compensated at a rate set by the Workers' Compensation Medical Services Board and approved by the director.

"(j) If the employee does not receive medical treatment related to the claimed injury for a period of two years, a rebuttable presumption arises that any subsequently obtained medical treatment is unrelated to the workers' compensation injury. The employer shall be liable for such medical treatment only upon a finding of clear and convincing proof that such treatment is related to the workers' compensation injury. The obligation of the employer for the payment of medical benefits shall conclusively end if the employee does not receive medical treatment related to the claimed injury for a period of four years."

Section 2. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Workers' Compensation

Industrial Relations Department

Courts

Employers

Disability Benefits

Code Amended