WHAT’S NEW AT THE COMMISSION LEGAL UPDATE Betty Arinder, Esq. Wells Marble & Hurst, PLLC

Mississippi Workers’ Compensation Commission 1428 Lakeland Drive / Post Office Box 5300 Jackson, Mississippi 39296-5300 (601) 987-4252 http://www.mwcc.ms.gov Liles Williams, Chairman Ray C. Minor, Executive Director Thomas A. Webb, Commissioner Joyce Wells, Commission Secretary Beth Aldridge, Commissioner February 22, 2016 MEMORANDUM Due to technical improvements in the Commission’s ability to electronically monitor the compliance of employer/carriers’ and self-insurers’ obligations to timely report injuries and payment and/or suspension of compensation benefits, as set forth in Miss. Code Ann. Section 71-3-67 and Miss. Code Ann. Section 71-3-37 respectively, the Commission will be actively pursuing new measures to significantly improve employer/carriers’ and self-insurers’ compliance with those obligations. Furthermore, failure of the employer/carriers and self-insurers to comply with those sections of law may result in the imposition by the Commission of any applicable penalty set forth therein, and/or additional penalties, fees, or expenses as set forth in Miss. Code Ann. Section 71-3-59. This memorandum is issued with the intention to give employer/carriers and self-insurers notice and fair warning that such improved monitoring has commenced and may result in a significant increase in the imposition of penalties for non-compliance. The imposition of penalties will not be applied retroactively to filings made prior to the date of this memorandum unless otherwise specifically ordered on individual claims by an Administrative Judge or the Commission. The relevant provisions of law can be viewed on the Commission’s website: http://www.mwcc.ms.gov From our homepage, go to “Law and Claims Procedure” and then “Search the Mississippi Code on the Lexis site.”

The Mississippi Workers’ Compensation Commission now has the ability to electronically monitor compliance with the statutory requirements for timely reporting of injuries and payment/suspension of benefits. The February 22, 2016, memorandum is “fair warning” from the Commission that they will be monitoring compliance and “actively pursuing new measures” to improve compliance.

Failure to comply may result in the imposition of “any applicable penalty”. Memorandum specifically references three code sections: §71-3-37—Payment of compensation. §71-3-59—Costs in proceedings brought without reasonable ground; penalties for pursuit of frivolous claim. §71-3-67—Reports of injuries.

Required Forms Subject of Memo First Report of Injury Form B-52—Notice of Controversion—filed when claim is disputed. Form B-18—filed when benefits begin or are suspended. Form B-31—Notice of Final Payment—filed at end of claim.

First Report of Injury §71-3-67 The initial focus of the MWCC will be on the timely filing of the First Report of Injury. A recent analysis by the Commission revealed an average compliance rate of only 35% to 40%. MCA §71-3-67 requires that the FROI be filed within 10 days: After the fatal termination of an injury; In the event of an injury which shall cause loss of time in excess of the statutory waiting period (within 10 days after the waiting period has been satisfied); When employer knows or reasonably should know that the injury will result in permanent disability or serious head or facial disfigurement.

Triggering date Death—FROI must be filed within 10 days. Disability in excess of the statutory five-day waiting period—FROI must be filed within 15 days of the date of disability. Facial disfigurement—FROI must be filed within 10 days after knew or reasonably should have known. Permanent disability—FROI must be filed within 10 days after knew or reasonably should have known.

Fines & Penalties Specifically for Untimely Filing of FROI Commission may levy fine of $100 for failure to timely file FROI. (§71-3-67) In addition, a civil penalty of $100 may be added to an award as a result of injury not timely reported. (§71-3-67) §71-3-59—much higher stakes!

Payment of Compensation §71-3-37 The first installment of compensation is due on the 14th day after the employer has notice as provided in §71-3-35 of the injury or death. “Upon making the first payment and upon suspension of payment for any cause, the employer shall immediately notify the commission in accordance with a form prescribed by the commission…” If the right to compensation is controverted, file the Notice of Controversion (form B-52) on or before the 14th day after the employer has knowledge of the alleged injury or death. File form B-31 within 30 days of the final payment of compensation.

Fines & Penalties Specifically for Untimely Payment & Untimely Filing of Forms B-18 and B-31 10% penalty for each installment of compensation untimely paid. Statute says “shall be added to each unpaid installment” and “shall be paid at the same time...unless such nonpayment is excused by the commission…” $100 penalty may be assessed for late filing of forms §71-3-59—much higher stakes!

§71-3-59 §71-3-59 is specifically referenced in the February 22, 2016, memorandum §71-3-59 gives the Commission wide latitude to impose costs, expenses, attorney’s fees, AND a civil penalty up to TEN THOUSAND DOLLARS.

Other Possible Repercussions Bad faith suit—filed in civil court for failure to pay or delay of payment without an arguable basis—punitive damages allowed. Revocation of self-insured status. May prevent two-year statute of limitations from running.

Avoiding Penalties Complete First Report of Injury fully and accurately—make sure the date reported to the employer and the date form prepared are correct. Report injuries/deaths to the SIF immediately. If you have reason to question the injury, let SIF know so that proper steps can be taken. Report any lost time to the SIF whether you have a doctor’s excuse or not. Immediately send any medical work excuses to the SIF. Immediately notify SIF of employee’s return to work. Immediately notify SIF if you receive medical documentation of an impairment rating or permanent work restrictions.

MWCC Rules New MWCC general and procedural rules became effective January 18, 2018. Rule 2.6 requires parties to contact each other 14 days prior to hearing to discuss settlement. Counsel for the employer/carrier is required to report the results of this discussion to the administrative judge’s legal assistant via email.

Rule 2.7 requires the adjuster to be present at the hearing or available by phone during the entirety of the hearing. Rule 2.12 provides that the 25% attorney’s fee in any proposed settlement will be calculated based only upon the amount of the settlement NOT proposed as funding for a Medicare Set-Aside arrangement.

Rule 2.12 allows an award of attorney’s fees to a claimant’s attorney on a quatum meruit basis in cases in which medical benefits are awarded and disability benefits have been paid out or claimant no longer has access to disability benefits. The award of attorney’s fees under Rule 2.12 is not a sanction on the employer/carrier. This rule was added to assist claimants in a medical claim after disability benefits have been exhausted and to provide an incentive for attorneys to assist claimants in a claim which only involves medical benefits.

Rule 2.15 requires that documents for proposed settlements with unrepresented claimants be filed with the Commission prior to appearing before the Commission for a settlement interview. After a commissioner has reviewed the documents, approval will be given to schedule the settlement interview.

Rule 2.17 covers the new procedure for effectively complying with the requirements of MS Code Ann. Section 71-3-37(7). The employer/carrier’s filing of MWCC form B-31 shall constitute compliance with the statute. Claimant or Claimant’s counsel shall be provided with a copy of the B-31 in any manner which acknowledges delivery of the B-31 to Claimant. Claimant’s signature is not required on the B-31. The filing of MWCC form B-31 will start the running of the one-year statute of limitations.

Rule 2.22 requires that responses to motions be filed within 15 days after the date of service of the motion.

Discussion/Questions