Administrative System

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Overview

The Administrative Act replaces the current judicial system under Title 85 with an administrative system governed by a three member commission appointed by the Governor and confirmed by the Senate.

One of the commissioners must be chosen from a list of three candidates submitted by the Speaker of the House.

Commissioners will serve six year terms, except for the inaugural appointees who will serve staggered terms of two, four, six years, respectively.

The commission will, among other things, appoint administrative law judges, hear appeals, and make all necessary rules and regulations to promote the efficient administration of workers\’ compensation claims.

Medical

There are no dollar or duration limits.

Choice of Physician

  • The employer may choose the treating physician.
  • The employee may request one change of physician.
  • The employee must select from a list of three physicians provided by the employer.

ODG is the primary standard of reference in determining the frequency and extent of services, but are not required to be followed.

Temporary Total Disability

  • The employee receives 70% of his/her AWW, but not to exceed 70% of the state AWW, for up to 104 weeks.
  • There is no TTD payment for the first three days of disability.
  • An ALJ may extend the TTD period for an additional 52 weeks for a consequential injury.
  • The employee will not be eligible for TTD if he/she is receiving unemployment benefits.

Permanent Partial Disability

  • The employee receives 70% of his/her AWW, not to exceed $323/week for up to 350 weeks.
  • A PPD award may not exceed 100% to any one body part or the body as a whole.
  • The impairment rating must be based on the current edition of the AMA’s “Guides to the Evaluation of Permanent Impairment”.
  • When determining PPD, the fact finder cannot consider pain.
  • An impairment rating may not be given to a body part which did not receive medical treatment.
  • After reaching MMI, if the employee is released to return to his/her pre-injury or equivalent job, then the PPD award will be held in reserve by the employer for a term of weeks determined by dividing the total dollar value of the PPD award by 70% of the employee’s AWW.
  • While in reserve, the amount of the PPD award will be reduced by 70% of the employee’s AWW for each week he/she works after being released.
  • If the employee is terminated for any reason other than misconduct, he/she will receive the PPD award minus the return to work offset in a lump sum.
  • Example: If an employee receives a PPD award with a total dollar value over its life of $20K and returns to his or her job making $715/week for 20 weeks before being laid off, he/she will receive $9,990 (20,000 – ((.7 X $715) X 20).
  • The return to work offset will apply if the employee refuses an offer to return to his/her pre-injury or equivalent job.

Permanent Total Disability

  • The employee receives 70% of his/her AWW, but not to exceed the state AWW until the later of reaching the age of maximum social security benefits or 15 years.
  • The Commission will annually review the status of all persons receiving PTD.
  • The fact finder cannot consider pain in determining whether an employee is permanently totally disabled.

Death

Surviving spouse:

  • $100K lump sum and 70% of deceased employee’s AWW, up to the state AWW, until remarriage.
  • If the surviving spouse remarries, he/she will receive two years of indemnity in a lump sum.
  • Surviving spouse and children:
  • If two or fewer, then each child receives $25K and 15% of the deceased employee’s AWW, up to the state AWW.
  • If more than two, then each child receives a pro-rata share of $50K and 30% of the deceased employee’s AWW.
  • Children and no surviving spouse:
  • If two or fewer, then each child receives $25K and 50% of the deceased employee’s AWW, up to the state AWW.
  • If more than two, then each child receives $25K and a pro-rata share of 100% of the deceased employee’s AWW, up to the state AWW.
  • If there are more than six children, then reach receives a pro-rata share of $150K .
  • No surviving spouse or children:
  • If there are legal guardians who were financially dependent on the deceased employee at the time of death, then each receives 25% of the deceased employee’s AWW, up to the state AWW until the earlier of death, becoming eligible for social security, obtaining full-time employment, for five years from the date benefits begin.
  • The employer is responsible for funeral expenses up to $10K.
  • Benefits payable to children terminate on the earlier of death, marriage, or turning 18. However, if the beneficiary is in school at 18, he/she until the earlier of 23 or no longer being enrolled in school.
  • A common law spouse can only recover death benefits if he or she obtains an order from a court with competent jurisdiction ruling that a common law marriage existed between the decedent and the surviving spouse.
  • The Administrative Act does not provide the 2 year lump sum due on re-marriage and also caps parents death benefits at 5 years. Otherwise, it mirrors Title 85.

Disfigurement

The employee may receive up to $50K for disfigurement at the discretion of the commission.

Vocational Rehabilitation

  • If the employee is unable to return to his/her pre-injury or equivalent position due to permanent restrictions, either party may request vocational rehab, which, if granted, will be paid for by the employer, for 52 weeks.
  • The employee may receive TTD for an additional 52 weeks while in vocational rehab.

Legal Fees

  • An attorney representing an employee may only recover attorney fees up to 10% of any temporary total disability or temporary partial disability compensation, and 20% of any permanent partial disability, permanent total disability, or death compensation awarded to an injured employee by the commission from a controverted claim. An attorney may also recover up to 10% of the value of voc rehab services. However, if the employer makes a written offer to settle permanent partial disability, permanent total disability, or death compensation and that offer is rejected, the employee’s attorney may not recover attorney fees in excess of 30% of the difference between the amount of any award and the settlement offer.
  • Attorney fees may not be collected for recovery on non-controverted claims. A “controverted claim” means that there has been a contested hearing before the commission over whether there has been a compensable injury or whether the employee is entitled to temporary total disability, temporary partial disability, permanent partial disability, permanent total disability, or death compensation.

Exclusive Remedy

  • The exclusive remedy and intentional tort exception is substantially similar to current law.
  • Well operators are deemed to be intermediate or principal employers for purposes of immunity.

Retaliation

  • An employer may not retaliate against an employee for filing a WC.
  • The commission has exclusive jurisdiction to hear and decide these retaliation claims.
  • If the commission determines that the employer retaliated against the employee, it may award the employee back pay up to a maximum of $100,000, subject to an offset by interim earnings.
  • The prevailing party may recover attorney fees.
  • An employer cannot terminate an employee during TTD solely for being absent.
  • An employee does not have a duty to retain or rehire an employee who, after TTD has been exhausted, is physically unable to return to work or whose position is no longer available.

Filing Limitations

  • The employee must file a claim with the Commission within one year of the date of injury.
  • A claim for compensation on account of death must be filed within two years of the death.
  • A claim for additional compensation must be filed within one year from the date of the last payment of disability compensation or two years from the date of the injury, whichever is greater.

Misrepresentation

If the employee or his/her lawyer makes a material false statement or knowingly omits information for the purpose of obtaining benefits, he/she will be guilty of a felony subject to a fine.

Missed Appointments

If the employee misses 2 or more appointments without a valid excuse, the employer may terminate benefits.

Notice of Injury

Except for occupational diseases, if an employee does not give his/her employer verbal or written notice of the injury within 30 working days of its occurrence, there is a rebuttable presumption that the injury is not work-related.

Subrogation

The proceeds of any third party action will be disbursed in the following priority:

  • The attorney collects his/her reasonable fees and costs;
  • The employer receives 2/3 of the remainder or its full lien amount, whichever is less; and
  • The employee receives the rest.
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