The National Council on Compensation Insurance (NCCI) released their first “Court Case Update” which highlights some of the cases NCCI’s Legal Division is reviewing. Challenges to workers’ compensation laws may ultimately change workers’ compensation systems across the country.
In the January 2018 edition, NCCI is looking at challenges to the use of AMA Guides for rate impairment. There are pending cases in Oklahoma and Kansas, and last year the Pennsylvania Supreme Court ruled that the use of the “most recent edition” of the guides was unconstitutional because it gave the AMA free reign over Pennsylvania’s impairment rating methodology. Many states use these guides for disability benefit ratings, and if there are similar rulings in those states they may see rate increases like Pennsylvania did after the ruling.
The legalization of marijuana is another big topic in workers’ comp right now. Some states have ruled that medical marijuana is compensable; Maine and Connecticut have cases under review. There have been recent cases where an injured worker using medical marijuana was terminated after testing positive for marijuana in a drug test, and courts generally sided with the injured worker. This is a closely watched topic.
There are several states where cases regarding reimbursement rates for air ambulances and who regulates those rates are pending. Is regulation under federal jurisdiction or state workers’ compensation? In Texas there is a case pending in the District Court for the Western District of Texas which challenges the state’s Workers Compensation Act limitation on air ambulance reimbursement rate of 125% of Medicare, saying instead that the rates are preempted by the ADA.
Florida has been a hotbed of activity for attorney fee challenges, and other states that have a cap on attorney fees will be paying attention to these and other cases. Florida struck down attorney fee schedules and Alabama overturned the 15% cap on attorney fees, saying those were unconstitutional. The Florida Senate proposed legislation to eliminate attorney fees in the calculation of work comp rates.
Kansas, Florida and Oklahoma are reviewing several other challenges to their workers’ comp systems, particularly Oklahoma after their reformations in 2013.
Check out the January 2018 edition of NCCI’s Court Case Update here.