UPDATES

IMPORTANT: Effective July 1, 2020, new protocol will be in place from the Massachusetts DIA with respect to the submission of Forms 105 and 113.

Effective July 1, 2020, Forms 105 and Forms 113 will no longer be accepted by the DIA via US Mail.

All Forms 105 and Forms 113 must be emailed to:

• Forms 105: DIA-Form105conciliation@mass.gov

• Forms 113: DIA-Form113conciliation@mass.gov

Please be sure to include the DIA board number in the upper right corner on both Forms 105 and Forms 113.

NOTE: any Forms 105 or Forms 113 not correctly submitted to the DIA via email will not be reviewed or considered for approval.

• Workers that die or suffer long-term disabilities from work-related COVID-19 may be a source of a Second Injury Fund claim that could reimburse the insurer up to 75% of costs associated with COVID-19 claims.

• COVID-19 is more lethal for people 50 years of age and older. Workers in this age group are more likely to have pre-existing conditions that may be used as the basis of a Second Injury Fund recovery.

• According to the Center for Disease Control, those who are immunocompromised or suffer from asthma, liver disease, kidney disease, lung disease, diabetes, hemoglobin disorders, heart conditions, or obesity have a higher risk of serious illness or death from COVID-19.  Workers with these conditions may qualify for a Second Injury Fund recovery if they develop work-related COVID-19.

• Workers with other types of pre-existing medical conditions may also be a source of Second Injury Fund recoveries.  Each claim should be examined on a case-by-case basis.

• Insurers should obtain and preserve information related to workers’ pre-existing conditions for employees working in professions that expose them to COVID-19.  The information may be obtained from personnel records, FMLA applications, co-workers with personal knowledge, observation of workers taking medication, or accommodations made by an employer for an employee.

• Second Injury Fund recoveries are not available for employees that are only disabled for a short period of time.­

Contact Ty DeMato at Mullen and McGourty, P.C. at (617) 338-9200, extension 235, or by email at tdemato@m2esq.com if you have any questions regarding Second Injury Fund recoveries related to COVID-19 or any other condition.

New procedure was recently enacted by the State of Connecticut Workers’ Compensation Commission (WCC) for Commissioner’s Medical Examinations (CME), as the protocol went into place effective September 15, 2019 per WCC Memorandum No. 2019-09.

After a WCC Commissioner orders a CME and sets the due date for submission of the full medical records packet, the appropriate district office will send out notice to all parties of a scheduled Pro Forma Formal Hearing. No attendance is required at the Pro Forma Formal, as the “hearing” is simply a formal notice of the date in which the medical records packet is due to the district office.

However, should the medical records exhibit not be provided by 4:00 p.m. on the date of the Pro Forma Formal, the WCC will proceed to schedule an Emergency Informal Hearing to address potential sanctions and penalties. The parties may request an extension of the due date as long as the request is made at least two days prior, but CMEs will not be scheduled until the district office is in receipt of the medicals.

Medical records packets are still to be submitted in chronological order by date of service with an index reflective of same; however, of note, the Commission states that physical therapy notes are to be isolated from the main packet. The Commissioner will determine whether the separate physical therapy notes are to be provided to the Commissioner’s Examiner.

Written consent from opposing counsel with respect to the contents of the packet must be provided to the WCC.

Finally, another noteworthy change: per WCC Memorandum No. 2019-08, the fee schedule for Commissioner’s Examiners has increased from $750.00 to a $900.00 fee for CMEs.

The Rhode Island Workers’ Compensation Court has granted insurers a limited opportunity to participate in a mediation program designed to resolve Rhode Island workers' compensation cases that are often frustrating and difficult to close.

In order to participate, the parties must file a Petition (for Submission to the Special Mediation Program) between October 1 and November 8, 2019. Thereafter, the matters will be scheduled for a hearing before the Chief Judge for assignment of the Mediator. All Mediation documents must be submitted to the assigned Mediator of the Workers' Compensation Court by November 22, 2019. Generally, the mediation documents to be submitted to the Court should consist of a summary of the case and 10 pages of relevant materials.

The program is timed so that mediation will occur between December 2 and December 6 (just in time for the Holiday).

Mediation will be conducted at the Workers' Compensation Court in Rhode Island. Consequently, the Rhode Island Workers' Compensation Court mediators, including Workers' Compensation Judges, may conduct mediation. 

This is an excellent opportunity to resolve your frustrating legacy claims, or new claims that are likely to lead to nuisance petitions by claimant attorneys. 

If you would like to have one of your Rhode Island workers' compensation cases assessed for participation in the mediation program, please contact the following:

Denise Lombardo Myers (dmyers@m2esq.com)

Wayne A. Gallo (wgallo@m2esq.com)

Massachusetts Department of Industrial Accidents judges may not order an Insurer to pay for an injured worker's medical marijuana according to the Massachusetts Reviewing Board’s decision issued February 14, 2019. Wright v. Pioneer Valley Board No. 0438715 (2019)

CASE HIGHLIGHTS

Possible criminal liability for paying for marijuana

• Neither Massachusetts marijuana laws, nor a Department of Industrial Accidents order provide a safe harbor from federal prosecution. 

• An Insurer that pays for medical marijuana may face federal conviction for violating the federal (CSA) Controlled Substances Act. 21 U.S.C. §§ 841 (a)(1).

• An Insurer may be a criminal accomplice to a CSA violation if the Insurer reimburses an injured worker for the costs or expenses associated with purchase of medical marijuana. 18 U.S.C. §2(a)(2011).

• Negotiating a price, arranging for delivery, or other activities in furtherance of the sale of medical marijuana may be sufficient to establish federal criminal liability for distribution of a controlled substance.

This Reviewing Board decision sets precedence at the DIA, but it is subject to appeal and review by the Massachusetts Appeals Court