WSR 14-21-157 PROPOSED RULES DEPARTMENT OF LABOR AND INDUSTRIES [Filed October 21, 2014, 3:52 p.m.]
Supplemental Notice to WSR 14-17-086.
Preproposal statement of inquiry was filed as WSR 13-23-077.
Title of Rule and Other Identifying Information: Chapter 296-15 WAC, Workers' compensation self-insurance rules and regulations; WAC 296-15-266 Penalties.
Hearing Location(s): Department of Labor and Industries, 7273 Linderson Way, Room S117, Tumwater, WA 98501, on December 1, 2014, at 9:30 a.m.
Date of Intended Adoption: December 23, 2014.
Submit Written Comments to: Mike Ratko, Department of Labor and Industries, P.O. Box 44100, Olympia, WA 98504-4100, e-mail michael.ratko@lni.wa.gov, fax (360) 902-4474, by December 1, 2014.
Assistance for Persons with Disabilities: Contact office of information and assistance by November 24, 2014, TTY (360) 902-5797.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department of labor and industries filed a CR-102 (WSR 14-17-086) proposing amendments to WAC 296-15-266 regarding the circumstances under which the department will consider assessing a penalty for an unreasonable delay of benefits, and the process of this penalty request.
The supplemental CR-102 amends the proposal in response to comments received during the initial comment period to clarify when a benefit is considered unreasonably delayed, remove language that is vague or imprecise, add language from statute for clarifying purposes, remove requirement for employer to notify department when payment is denied, add a requirement for employers to notify the department when there is a worker or medical provider dispute over payment denial, and provide for an additional five working days for employer response time within the thirty day requirement for responding to penalties, etc. A new hearing has been scheduled and the written comment period extended.
Rule is not necessitated by federal law, federal or state court decision.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Mike Ratko, Tumwater, Washington, (360) 902-6369.
No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement (SBEIS) was prepared and filed with the CR-102 proposal under WSR 14-17-086. The supplemental CR-102 amendments do not impact the SBEIS analysis.
A cost-benefit analysis is not required under RCW 34.05.328. A cost-benefit analysis (CBA) was prepared for the CR-102 proposal under WSR 14-17-086. The supplemental CR-102 amendments do not impact the CBA.
October 21, 2014
Joel Sacks
Director
AMENDATORY SECTION (Amending WSR 06-06-066, filed 2/28/06, effective 4/1/06)
WAC 296-15-266 Penalties.
((What must a self-insurer do when the department issues an order assessing a penalty? The self-insurer must make payment of the penalty assessment on or before the date the order becomes final.)) (1) Under what circumstances will the department consider assessing a penalty for an unreasonable delay of benefits, when requested by a worker? Upon a worker's request, the department will consider assessment of an unreasonable delay of benefits penalty for:
(a) Time loss compensation benefits: The department will issue an unreasonable delay order, and assess associated penalties based on the unreasonably delayed time loss as determined by the department, if a self-insurer:
(i) Has written medical certification based on objective findings from the attending medical provider authorized to treat that the claimant is unable to work because of conditions proximately caused by the industrial injury or occupational disease, or the claimant is participating in a department-approved vocational plan; and
(ii) Fails to make the first time loss payment to the claimant within fourteen calendar days of notice that there is a claim*, or fails to continue time loss payments on regular intervals as required by RCW 51.32.190(3); and
(iii) Fails to request, with supporting medical evidence and within thirty days of receiving written notice of a newly contended medical condition related to the industrial injury or occupational disease, that the department settle a dispute about the covered conditions or eligibility for time loss compensation. For good cause, in the department's sole discretion, a sixty-day extension may be granted.
(b) Unreasonable delays of loss of earning power compensation payments or permanent partial disability award payments will also be subject to penalty.
(c) Payment of medical treatment benefits: The department will issue an unreasonable delay order, and assess associated penalties based on the department's fee schedule, order, and accrued principal and interest, if a self-insurer fails to pay all fees and medical charges within sixty days of receiving a proper billing, as defined in WAC 296-20-125 through 296-20-17004, or sixty days after the claim is allowed per RCW 51.36.080.
(i) If the self-insurer believes that it should not pay the billing, or if the self-insurer believes that the treatment is not for a condition proximately caused by the industrial injury or occupational disease, the self-insurer must, within sixty calendar days of receiving a billing, clearly state in writing to the worker and the medical provider why the payment is denied.
(ii) If a denial is disputed by the worker or medical provider and the self-insurer does not allow the bill, the self-insurer must notify the department within thirty days, and the department will review the reasons provided by the self-insurer and will make a decision by order within thirty days.
(d) Authorization of emergent or life-saving medical treatment benefits: The department will issue an unreasonable delay order, and assess associated penalties, based on the department's fee schedule, order, and accrued principal and interest, if a self-insurer fails to respond to requests to authorize emergent or life-saving treatment within fourteen days after receiving notice of the request for treatment.
(i) If the request is denied, the self-insured employer must clearly tell the medical provider and the claimant, in writing, why the request is being denied.
(ii) If the medical provider or claimant disagrees with the self-insurer's decision, either of them may file a dispute with the department.
(e) Failure to pay benefits without cause: The department will issue an order determining an unreasonable refusal to pay benefits, and assess associated penalties, based on the department's calculation of benefits or fee schedule, if a self-insurer fails to pay a benefit such as time loss compensation, loss-of-earning-power compensation, permanent partial disability award payments, or medical treatment when there is no medical, vocational, or legal doubt about whether the self-insurer should pay the benefit. Accrued principal and interest will apply to nonpayment of medical benefits.
(f) Paying benefits during an appeal to the board of industrial insurance appeals: The department will issue an unreasonable delay order, and assess associated penalties, based on the department's calculation of benefits or fee schedule, if a self-insurer appeals a department order to the board of industrial insurance appeals, and fails to provide the benefits required by the order on appeal within fourteen calendar days of the date of the order, and thereafter at regular fourteen day or semi-monthly intervals, as applicable, until or unless the board of industrial insurance appeals grants a stay of the department order, or until and unless the department reassumes jurisdiction and places the order on appeal in abeyance, or until the claimant returns to work, or the department issues a subsequent order terminating the benefits under appeal.
(g) Benefits will not be considered unreasonably delayed if paid within three calendar days of the statutory due date.
(2) How is a penalty request created and processed?
(a) An injured worker may request a penalty against his or her self-insured employer by:
(i) Completing the appropriate self-insurance form or sending a written request providing the reasons for requesting the penalty;
(ii) Attaching supporting documents (optional).
(b) Within ten working days of receipt of a certified request, the self-insured employer must send its claim file to the department. Failure to timely respond may subject the self-insured employer to a rule violation penalty under RCW 51.48.080. The employer may attach supporting documents, or indicate, in writing, if the employer will be providing further supporting documents, which must be received by the department within five additional working days. If the employer fails to timely respond to the penalty request, the department will issue an order in response to the injured worker's request based on the available information.
(c) The department will issue an order within thirty days after receiving a complete written request for penalty per (a) of this subsection. The department's review during the thirty-day period for responding to the injured worker's request will include only the claim file records and supporting documents provided by the worker and the employer per (a) and (b) of this subsection.
(d) In deciding whether to assess a penalty, the department will consider only the underlying record and supporting documents at the time of the request which will include documents listed in (a) and (b) of this subsection, if timely available, to determine if the alleged untimely benefit was appropriately requested and if the employer timely responded.
(e) The department order issued under (c) of this subsection is subject to request for reconsideration or appeal under the provisions of RCW 51.52.050 and 51.52.060.
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