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DWC Holds Hearing on New Proposed Regulations

We had the opportunity to attend a hearing at the DWC (Department of Workers Claims) on July 28, where several speakers offered comments on the proposed workers' comp practice regulations. Commissioner Lovan advised attendees that written comments had been filed by several other stakeholders (including extensive comments from these writers).

Though numerous good points were made, two observations repeatedly rose to the surface. First, plaintiff-side practitioners advocated against extending the proof schedule from 60-30-15 (105 total days) to 60-60-30 (150 total days), arguing that the additional 45 days puts too much additional strain on financially-strapped injured workers. It was also suggested that, due to the implementation of electronic filing, the proof process should be made shorter, not longer. While this position is not surprising, there are several arguments against this. Extensions of proof time are routinely requested (and granted) due to the difficulty in obtaining credible IME and vocational reports on a timeline that complies with the current scheduling requirements. If plaintiffs do not complete their proof until the very end of their time to do so, defendants do not have much time to respond, particularly if a plaintiff has not been forthcoming concerning medical or other information pertaining to his or her condition. This is not a one-sided problem; often plaintiffs are the ones that require extensions.

Going hand-in-hand with the above, another speaker suggested that plaintiffs should have to provide little, if any, background information when they file their applications for benefits. The speaker even went so far as to propose that plaintiffs should not have to provide written employment and medical histories at all; instead, the defense could wait to gather all of that information at the plaintiff's deposition. However, this suggestion would only create a further delay in the litigation process, resulting in requests for more proof time to obtain the information that could just as easily have been provided much earlier. The result would be entirely contrary to plaintiffs' objective.

The more a plaintiff provides at the start of the litigation the more quickly we can move to a resolution. The less that is provided, the more time will be needed to complete discovery. A complete medical and employment history should be attached to the Form 101. It goes without saying that both should be complete, and plaintiffs' attorneys should ensure this before submitting it to the DWC. If it is incomplete then either (a) the DWC should reject the Form 101 and attachments or (b) proof time should be continued during the period of non-compliance. While more than one member of the plaintiff's bar stated that the carrier/employer "already has everything pre-litigation", that is not the case. What they have is a function of what a plaintiff decides to tell them. Often times this is limited to the claim itself, not a detailed pre-litigation listing of everyone he or she has treated with before the alleged work injury. Too often, defense counsel ends up discovering, requesting and subpoenaing records throughout litigation. Some medical providers are incredibly slow to respond to requests or even subpoenas from our ALJs.

We would rather give up the additional thirty days of proof time and, in exchange, have the DWC enforce the current regulations mandating that Plaintiff file a complete past medical and work history when submitting his or her Form 101.

The second major theme of the hearing had to do with the lack of enough specific guidelines concerning the new online filing system, which will become available for use on March 1, 2016. The new practice regulations are lengthy but contain very few provisions that deal directly with how that system is supposed to function. The questions were many. How are filings accomplished if the system goes down? What is the process for a pro se plaintiff who does not have computer access? Others stated that it is too soon to have concrete regulations concerning a system that has not yet been completed or field tested. All of these are valid remarks that the DWC will need to take into consideration.

Other comments on the regulations included:

  • Proposed availability of a mediation process - if this is to be implemented, more detail is needed on who may request it and who must bear the cost.
  • Sanctions - should permit a showing of good cause before requiring that an ALJ impose them. Also, it should not permit individual ALJs to have too much discretion.
  • Discovery - mandating automatic production of certain types of documents otherwise protected as work product contravenes the rules of civil procedure. This was raised by Jim Fogle; his points were similar to the concerns we raised in our written comments to the DWC. This portion of the proposed regulation should be removed. If it remains, there will be a lot of litigation and appeals on the issue.

The proposed regulations can be found at http://www.labor.ky.gov/workersclaims/Whats%20New%20Homepage/008reg.pdf. Written comments on the proposed regs must be received by the DWC before the close of business on July 31.

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