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Bar News - August 19, 2015

Workers’ Compensation & Personal Injury: Recent Changes in Workers Compensation Law

A December 2014 report noted that medical costs for procedures performed for a workers’ compensation injury were 107-263 percent higher than identical treatments for similar injuries not caused at work.

Though numerous bills were submitted, only two changes to the New Hampshire workers’ compensation statute passed and became law in the most recent legislative session.

On July 6, Gov. Maggie Hassan signed into law Senate Bill 133, which makes significant changes to RSA 281-A:24 (Payment for Reasonable Value of Services), the statute that governs the manner in which disputes over the reasonable value of medical services are decided in workers’ compensation claims.

Under the old version of RSA 281-A:24, an employer or carrier was required to “pay the full amount of the health care provider’s bill unless… [it] can show just cause as to why the total amount should not be paid.”

This language provided employers, carriers, and their representatives little leverage in a dispute about the cost of medical procedures. “Just cause” was never defined, but suggested a heightened burden of proof the carrier had to reach to overcome the assumption that it required them to pay the full amount of the bill.

Concerns over the rising cost of medical care – particularly medical care in workers’ compensation claims – have been present in New Hampshire for some time.

In September 2014, the governor and New Hampshire Legislature created a commission to study the issue, noting that medical costs had grown to nearly 75 percent of total workers’ compensation dollars spent in New Hampshire (versus 60 percent nationwide) and that the average workers’ compensation surgical procedure in New Hampshire was 83 percent more expensive than similar procedures in the region, and more than twice as expensive as they are nationally.

Released in December 2014, the commission’s report noted that medical costs for procedures performed for a workers’ compensation injury were 107-263 percent higher than identical treatments for similar injuries not caused at work.

With that in mind, the Legislature crafted a change to RSA 281-A:24 to address the high cost of medical care in workers’ compensation claims. The final bill was a compromise, after efforts to study the issue and to create a fee scheduled were rejected. Effective Sept. 4, 2015, RSA 281-A:24 is changed in relevant part to read:

(a) The employer or the employer’s insurance carrier shall pay the reasonable value of medical services provided under this chapter.

(b) The health care provider shall have the burden of establishing that its bill for services is reasonable.

A carrier need no longer pay the “full amount” of the bill, and now need only pay the “reasonable value” for the services provided. The carrier no longer has the burden of showing “just cause” as to why the total amount should not be paid; health care providers have the burden of proving a charge is reasonable when a carrier objects to the amount of a medical bill.

This change is an attempt to level the playing field by forcing providers to present evidence that charges are reasonable, rather than placing that onus on the carrier to show why a bill is unreasonable.

The other change to RSA 281-A was the enactment of Senate Bill 186, which reestablished a commission to study soft tissue injuries in the workers’ compensation system and to study the feasibility of developing a first responder’s critical injury fund.

The bill simply reestablishes the commission formed in 2014 after it was unable to complete its work and provide a report in the time allotted. The bill provides for the commission to report its recommendations for any new legislation no later than Nov. 1, 2015.

The first responder’s critical injury fund was created in 2014 to provide additional payments beyond what is already provided in the workers’ compensation statute for members of Group II (first responders) in the state retirement system who suffer work injuries resulting in partial impairments to the heart, lung, brain, other internal organs, sense of touch, taste, smell or speech. The payments are made from the State general fund. The first responder’s critical injury fund is scheduled to sunset on July 1, 2016, when no additional payments can be made.

Notable bills that did not become law included Senate Bill 203-FN that would have extended the statute of limitations for claiming weekly benefits pursuant to RSA 281-A:48. Senate Bill 45 also failed, which would have prohibited workers’ compensation medical payments for the use of opioids for more than 90 days within any six-month period unless the treating health care provider and patient entered into an opioid treatment agreement.

Given the interest in this topic at the Legislature, it would come as no surprise if the next legislative session also sees many bills submitted that could change the practice of workers’ compensation law in New Hampshire.

Kevin Stuart

Joshua Hilliard

Kevin W. Stuart and Joshua S. Hilliard are attorneys at Bernard & Merrill in Manchester. Hilliard is the clerk of the NHBA Workers Compensation Section.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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