1402-S AMH COND ELGE 045

SHB 1402 - H AMD 139

By Representative Condotta

NOT ADOPTED 3/11/2009

    Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. A new section is added to chapter 51.52 RCW to read as follows:

    (1)(a) Except as provided in (b), (c) and (d) of this subsection, after the filing of a notice of appeal under RCW 51.52.060(2) and confirmation of witnesses pursuant to the rules of the board, the department and its representatives and the employer and its representatives shall not have contact to discuss the facts or issues in question in the appeal with any medical provider who has examined or treated the worker at the request of the worker or treating medical provider and has been confirmed as a witness by the worker or the worker’s representative, unless written authorization for contact is given by the worker or the worker's representative. Written authorization is only valid if given after the date of the worker’s witness confirmation and expires ninety days after it is signed.

    (b) Contact is permitted as necessary for the ongoing management of the claim, including but not limited to communication regarding the worker's treatment needs and the provider's treatment plan, vocational and return-to-work issues and assistance, and certification of the worker's inability to work, unless these issues are in question in the appeal.

    (c) If the department and its representatives or the employer and its representatives wish to communicate with the examining or treating medical providers concerning the issues in question in the appeal and no written authorization from the worker or the worker's representative has been obtained, after the worker’s confirmation of witnesses the communication must either be:

    (i) In writing including by e-mail, sent contemporaneously to all parties with a notice to the provider in bold type that any response must be in writing, including by e-mail;

    (ii) In person, by telephone, or videoconference, at a date and time mutually agreed to by all parties, with the worker or the worker's representative given the opportunity to fully participate; or

    (iii) Pursuant to a properly scheduled and noted deposition.

    (d) Written authorization is not required if the worker fails to confirm the examining or treating medical provider as a witness as required by the board.

    (2)(a) Except as provided in (b) and (c) of this subsection, after the filing of a notice of appeal under RCW 51.52.060(2) and confirmation of witnesses pursuant to rules of the board, the worker and the worker's representative, if any, shall not have contact to discuss the facts or issues in question in the appeal with any medical provider who has examined the worker at the request of the employer or the employer’s representative and has been confirmed as a witness by the employer or the employer’s representative, unless written authorization for contact is given by the employer or the employer’s representative. Written authorization is only valid if given after the date of the employer’s witness confirmation and expires ninety days after it is signed.

    (b) If the worker or the worker's representative wishes to communicate with a medical provider who has examined the worker at the request of the employer and no written authorization from the employer or the employer’s representative has been obtained, the communication must either be:

    (i) In writing, including by e-mail, sent contemporaneously to all parties with a notice to the provider in bold type that any response must be in writing, including by e-mail;

    (ii) In person, by telephone, or videoconference, at a date and time mutually agreed to by all parties, with the department, employer, and their representatives given the opportunity to fully participate; or

    (iii) Pursuant to a properly scheduled and noted deposition.

    (c) Written authorization is not required if the employer fails to confirm the examining medical provider as a witness as required by the board.

    (3)(a) Except as provided in (b) and (c) of this subsection, after the filing of a notice of appeal under RCW 51.52.060(2) and confirmation of witnesses pursuant to the rules of the board, the worker and worker's representative, if any, shall not have contact to discuss the facts or issues in question in the appeal with any medical provider who has examined the worker at the request of the department and has been confirmed as a witness by the department or employer unless written authorization for contact is given by the department or its representative or, in the event that the department is not participating in the appeal, by the employer or its representative.  Written authorization is only valid if given after the date of the department’s witness confirmation or, if the department is not participating in the appeal, the employer’s witness confirmation, and expires ninety days after it is signed.

    (b) If the worker or the worker’s representative wishes to communicate with a medical provider who has examined the worker at the request of the department, and no written authorization has been obtained from the department or the department’s representative or, if the department is not participating in the appeal, the employer or the employer’s representative, the communication must either be:

    (i) In writing, including by e-mail, sent contemporaneously to all parties with a notice to the provider in bold type that any response must be in writing, including by e-mail;

    (ii) In person, by telephone, or videoconference, at a date and time mutually agreed to by all parties, with the department, employer, and their representatives given the opportunity to fully participate; or

    (iii) Pursuant to a properly scheduled and noted deposition.

    (c) Written authorization is not required if the department or employer fails to confirm the examining medical provider as a witness as required by the board.

    (4) The board may determine whether the parties have made themselves reasonably available to participate in telephone or videoconference communications as provided in subsections (1)(c)(ii), (2)(b)(ii) and (3)(b)(ii) of this section.

    (5) This section only applies to issues set forth in a notice of appeal under RCW 51.52.060(2).

    (6) This section does not limit the reporting requirements under RCW 51.04.050 and 51.36.060 for issues not set forth in a notice of appeal.

    (7) The department and the board may adopt rules as necessary to implement the provisions of this section.

NEW SECTION. Sec. 2. This act applies to orders entered on or after the effective date of this section."

EFFECT:   Provides that the restrictions on contact with medical providers apply at the same stage of the proceedings for employers, the Department, and workers.  Provides that the restrictions apply when witnesses are confirmed and that any written authorization for contact must be given after witnesses are confirmed.

           Provides that the Board of Industrial Insurance Appeals, rather than the assigned judge, decides whether the parties have made themselves reasonably available and deletes the grant of authority to the judge to determine remedies, including sanctions.

           Restores language in the original bill requiring any written notice to medical providers to be in bold type rather than "distinct."

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