The April meeting of the Workers’ Compensation Advisory Council (WCAC) at the Louisiana Workforce Commission focused mainly on regulatory issues, including Senator Gatti’s pending subrogation bill (SB 44). However, much of the discussion was tied up with the new proposed 1008 and Answer forms, presented by newly appointed Chief Judge Diane Lundeen. Complaints about the draft centered around potential difficulty of use for unrepresented claimants.
Senator Gatti Presents SB 44 with Amendments for Council Vote
The first order of business was the reconsideration of Senator Ryan Gatti’s SB 44, which aims to ensure that employers receive the credits and experience modifier (e-mod) adjustments to which they are entitled when a third party tortfeasor is involved in a workers’ comp claim. Senator Gatti presented the bill to the Council in terms of a hypothetical construction company, explaining that a constituent had approached him about why the workers’ comp rate for his business was still high after a third party settlement had paid the carrier back. On a practical level, Gatti said, this means that the company’s e-mod increased to the extent that it could not compete for jobs. “That’s what I drafted the bill for – traumatic-like cases in the oil and gas industry when a third party was liable. What this law says is that when the insurer receives that settlement proceed from the third party, they have to reduce the employer’s rating back down to where it was before the accident,” he said.
Debate amongst the WCAC members and comments from the public questioned whether the bill was necessary, given that dollar-for-dollar credits for such subrogation situations are already on the books. Senator Gatti explained that in some cases, if part of the lien is waived by the carrier, an employer might not capture the whole credit and e-mod restoration. Once the latest amendments (which give force of law to NCCI rules for dollar-for-dollar credit to the employer to enforce against “bad actors” that do not adjust e-mods) were distributed to the Council, the bill was unanimously reported favorably. It is expected to go before the Senate Labor and Industrial Relations Committee within the next two weeks.
Chief Judge Lundeen Presents New 1008 and Answer, Plus 1011 Drafts
The other major agenda item for the April meeting was the presentation of the new 1008 and 1008 Answer forms, as well as the 1011 form (see pdf links below to view/download). The documents are currently in the draft stage, but as Judge Diane Lundeen explained, the revamped format will allow for what will eventually be e-filing and should streamline issues like service. “With the emergency rules [issued last year and increasing filing fees], this will allow us to know who needs to be served, so that we’re not just calling everybody under the sun,” she said.
“We tried to make the form a lot more clear, it wasn’t that clear before. If we need you to answer something, there’s a line for it […] We also added something which was previously vetted, which is the ‘Is the employee currently working?’ question. That’s going to help us to know what type of benefits someone might be looking for,” Lundeen explained.
Further, the draft contains a section for requesting an expedited hearing, which did not exist previously. The reason for this, according to Lundeen, is to help attorneys along. “Sometimes what’s happening is, under the law, you should have an expedited hearing. Lawyers aren’t filed the motion for expedited hearing. They really should file their motion, but if they don’t, here it is on this form and they can check why they’re entitled to it,” she said. “This also prevents cases that are not entitled to an expedited hearing from coming into the court and raising the costs for the defense for someone to file an exception.”
The form also contains fraud as one of the options for cause of action, which was previously concerning to some members of the Council. Judge Lundeen explained that the task force (led by Council members Greg Hubachek and Denis Juge) attempted to correct this by requiring an explanation of the alleged fraud.
Objections voiced by the public (including former comp judge and current comp attorney Mark Zimmerman) included concerns about the final note on the form, which states in part that: “Failure to properly complete this form or to provide correct contact information may result in the rejection, delay, or dismissal of your case.” Zimmerman opined that such a statement implies an open-ended authority that the OWCA does not have. Judge Lundeen countered that concern by saying that nothing will be dismissed without a hearing, and that the note is there as a cautionary tale, not as a part of the pleading itself.
To address some of the criticism directed at both the 1008 and the 1008 Answer forms which centered around the documents’ potential to stymie unrepresented claimants, Judge Lundeen and OWCA Director Sheral Kellar assured the public that a set of instructions would be provided. “Just like the federal government does, except hopefully more clear, we’ll have a set of instructions written for any user,” Lundeen said. Director Kellar stated that the forms themselves will be promulgated but the instruction sheet will not; however, the instructions will be published on the website alongside the form. Judge Lundeen also expressed willingness to remove the contact information note at the end of the 1008 form if that was the primary concern for stakeholders.
Regarding the 1011 form, which is attached to a settlement to get it in front of the court, not much was altered. “The only thing that has changed on this form is the section asking about the type of settlement – medical only, indemnity only, or full and final,” Lundeen explained.
Further changes to the form drafts are likely forthcoming in future WCAC meetings. The date of the next meeting is May 26th, location to be determined.
New LWC Form Drafts: