Hon. Dwight T. Lovan

Based upon the presentation of Workers’ Compensation Commissioner Dwight T. Lovan at the 17th Biennial Workers Compensation Institute that was held in Lexington, KY on October 16th & 17th, 2008, the following proposals are being considered as potential Practice Regulation Changes: 

SIXTH EDITION OF THE AMA GUIDES

The approval of the 6th Edition of the AMA Guides is still very much in the air. While some improvements are recognized, such as bringing impairments for cervical and lumbar fusions more in line with their actual disabling realities, the 6th Edition of the AMA Guides is still being evaluated from a practicality standpoint.

Analysis & Practice Impact: The complexity of rating impairments under the 6th Edition raises concerns about who will be qualified and willing to prepare a basic impairment rating. For example, many treating physicians may be unwilling to invest the time and effort needed to become familiar with the 6th Edition of the AMA Guides. This could create a situation where IME physicians take an even more important role in the litigation process, which is something that the Commissioner clearly wants to avoid. You may not want to invest a lot of time memorizing the 6th Edition of the AMA Guides until a definitive effective date is adopted by the Commissioner. For now, it looks as if Kentucky will continue to operate  under the 5th Edition into the foreseeable future.

E-FILING

By 2009 the Office of Workers’ Claims hopes to provide on-line access to all cases through the attorney of record’s Bar Identification Number (which would be required on all initial pleadings). Form 101’s, Form 111’s, Motions for Extension, & other basic pleadings will be able to be filed on-line.

Analysis & Practice Impact: This obviously will simplify the practice of law. Law firms and insurance companies with the technological ability to take advantage of these filing and file access options will be able to eliminate administrative costs and make more efficient use of their human resources.

MEDICAL FEE DISPUTES

Medical Fee Disputes may be transferred outside of the normal adjudication process, with a “handful” of ALJ’s taking turns on 6 month appointments where they do nothing but handle Medical Fee Dispute dockets.

Analysis & Practice Impact: The Commissioner obviously wants to do something to eliminate the additional litigation that is being generated by Medical Fee Disputes. However, until substantive changes are made to how medical benefits are awarded to injured workers’, the need for insurance companies to review and challenge ongoing medical treatment will continue. This proposed change is purely procedural in nature, and should not affect our ability to effectively challenge and eliminate proposed medical treatment that is neither “medically reasonable nor necessary for the cure and/or relief” of a work related injury.

BENEFIT REVIEW CONFERENCES

Formal BRC’s may be done away with in favor of a Status Conference within 45 days of the Form 101 being filed. At the Status Conference parties would be required to submit a formal proof strategy listing witnesses and issues being contested. An expanded 60/60/15 proof schedule would be the standard, and the formal ALJ assignment to a particular claim would not occur until AFTER the Status Conference where witnesses were submitted.

Analysis & Practice Impact: Under this new litigation process, extensions of proof time would become much more difficult to obtain following the Status Conference. In order to avoid postponed dockets, parties would be held to the strict requirements under the Kentucky Administrative Regulations in order to obtain extensions of proof time. For example, the requesting attorney would have to submit an Affidavit indicating when the desired witness was first contacted, when that witness is first available, and why that particular witness is essential. Because the formal ALJ assignment would not occur until after witnesses and issues are chosen at the initial Status Conference (with that assignment being based upon which ALJ’s are scheduled to be in the local area at that time of the proposed Final Hearing), it will be more difficult to tailor the selection of experts toward particular ALJs who typically might find certain experts more credible than others.

Additionally, because a BRC could still be scheduled at the ALJ’s discretion for the purposes of settlement prior to the Final Hearing, this proposal would create additional travel expenses and billable hours that do not necessarily help the defense obtain as efficient resolution of a claim as it did under the old system.

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