Legal Trends
Summer 2012
The Rhode Island workers’ compensation system was the subject of a relatively small number of legislative changes in the 2012 General Assembly session. The Rhode Island Supreme Court also recently released opinions in cases affecting workers’ compensation. Finally, work continues at the grass roots level on potential legislative and policy changes for next year. The following will summarize all of the above and more with the goal of helping you better navigate one of the best functioning workers’ compensation systems in the country.
LEGISLATION
Only three legislative changes were recommended to the General Assembly by the Workers’ Compensation Advisory Council. Consequently, there was no true “omnibus bill”. Other legislative changes occurred that indirectly affect the system. The following is a summary of what occurred at the General Assembly this year that impacts workers’ compensation:
Uninsured Employers Fund. The General Assembly created an Uninsured Employer Fund in 2007 but has yet to fully capitalize its operation. While the filing fees at the Workers’ Compensation Court go to the Fund, these monies are not enough. The General Assembly has delayed the Fund’s operation since its inception until funds are available. The General Assembly delayed its implementation again this year and its applicability to injuries that occur on and after January 1, 2013.
Temporary Disability Insurance (TDI). The General Assembly clarified two ambiguities relating to an injured workers’ entitlement to TDI benefits if that worker previously settled a workers’ compensation claim for an unrelated injury.
Medicaid Liens. As part of the Governor’s budget, an automated process was implemented by the Executive Office of Health and Human Services for identification and reimbursement of Medicaid Liens. It is expected that the Executive Office will shortly be issuing Rules and Regulations outlining the specifics of how to comply with this change.
Courts and Civil Procedure. Changes were made in the law governing how expert affidavits are used in civil litigation, which include the Workers’ Compensation Court. This change is not expected to negatively affect workers’ compensation in any way.
Information Sharing. As an indirect result of the work done three years ago by the General Assembly’s Task Force on Misclassification and the Underground Economy, a bill became law this year that requires and authorizes the sharing of information between the Department of Labor and Training and the Department of Revenue for purposes of fraud investigation. This is a big step in identifying and preventing misclassification.
Contractors Registration Board. This bill expanded the authority of the Board to suspend a contractor’s license for failure to carry workers’ compensation insurance.
WORKERS’ COMPENSATION ADVISORY COUNCIL
The Workers’ Compensation Advisory Council is done meeting for this session. One subcommittee remains active and is studying the employer’s burden of proof in prosecuting petitions to review at the Court. No consensus was reached on the subcommittee studying the exclusive remedy protection afforded the client company (special employer) in the temporary employment relationship so there was no recommended legislation on this issue this year. Next year the Advisory Council will be busy with issues including capitalization or further delay of the Uninsured Employer Fund, the “Gate” and the definition of “material hindrance”; and a host of other suggested legislative changes.
DEPARTMENT OF LABOR AND TRAINING
The Fee Schedule Task Force has met and it is studying all medical fees. It is expected that the Director will be making changes to the fee schedule this fall.
The Dr. John E. Donley Rehabilitation Center falls under the umbrella of the Department. The Donley Center has yet to implement the recommendations made by the Advisory Council originating from its Donley Center Task Force. The Center is, however, busy implementing two new programs originated by the Workers’ Compensation Court to assist workers’ who have lump sum settled their claims and those who have been found to be a maximum medical improvement (MMI). The two programs are aimed at assisting workers looking for work post-settlement and providing vocational services to workers who are found by the Court to be at MMI. It is too early to tell the impact of these new endeavors on the system.
WORKERS COMPENSATION COURT
At the Court, the calendar remains a model of efficiency. Pretrial hearings are still scheduled and held within twenty-one days of filing and resolution continues to occur in the vast majority of cases at this level. This allows the timely trial of the more complicated issues that deserve and need a full trial. There is a vacancy at the Court with the retirement of Judge Bruce Morin and the Judicial Nominating Commission has made its recommendations for replacement to the Governor. The Governor nominates a replacement from a list of recommended candidates and sends that selection to the Senate for advice and consent. To date that nomination has not been made.
The Appellate Division of the Workers’ Compensation Court continues to render decisions, although the number of appeals from the trial level is very few. Of the six Appellate Division decisions rendered this year to date, only one appeal was sustained; the remainder affirmed the trial judge. That one case, Cappalli v. City of Providence (WCC 2009-00576) and a decision rendered last term in Rothemich v. St. Joseph’s Hospital (2006-07906) bear watching as the Supreme Court has accepted certiorari on petitions filed by the injured worker. The subject matter of both decisions is the “Gate” of 312 weeks and the definition of “material hindrance”. Click here to access the full texts of the decisions.
The Rhode Island Supreme Court has rendered two decisions this term directly impacting workers’ compensation. In LaFreniere v. Dutton, 2011-244-Appeal (RISC), the Court reaffirmed the viability of the exclusive remedy doctrine in Rhode Island by affirming a summary judgment order of a trial judge in the Superior Court. In Gallagher, et al v. National Grid, et al, 2011-111-M.P, 2011-113-M.P, (RISC), the Court affirmed the decrees of the Appellate Division that found that in occupational disease cases, the burden is on the petitioner to prove liability and exposure against each employer including the last employer. Click here to access both of these cases.
MEDICAL ADVISORY BOARD
The Medical Advisory Board continues to re-visit the protocols that it has established over the years. On the agenda for the future are changes to the Pharmaceutical Protocol and the development of a Chronic Pain Management Protocol. The Board will be meeting again in early September.
In conclusion, many developments have occurred over the past year that both directly and indirectly impact our state’s system. Without this awareness, our system and its efficiencies could shift to the detriment of its primary stakeholders; the employees and employers of our state. Please feel free to contact anyone here at Beacon with questions in regards to the above.