MONTANA SELF INSURERS' ASSOCIATION
July 2021 Update
- Two Court Cases – From the Supremes, Restitution (not subrogation) & From the WCC, Terminating TTD Benefits
- Governor’s Conference 9/29 – 10/1
- MSIA Annual Meeting Sponsored by Browning, Kaleczyc, Berry & Hoven and Definiti Comp Solutions
- MSIA Dues – Due by July 31
- EAIC Committee Named and Studies Identified
- Welcome New Member - - COMT!
- ERD Stakeholders Update – Tuesday 7/13 at 1:30p
- Two Court Cases – From the Supremes, Restitution (not subrogation) & From the WCC, Terminating TTD Benefits
In State v Lodahl DA19-406 the Supreme Court affirmed the Montana State Fund’s (MSF) right to restitution as a victim insurer of a criminal act committed against one of their insured’s employees. Subrogation, the Supreme Court has told us time and again, is not constitutional until the injured worker is “made whole.” However, in this case, criminal restitution is.
Lodahl assaulted a Gallatin County Sergeant and causing injuries which were covered by MSF. In a plea agreement, Lodahl agreed to pled guilty to a misdemeanor assault and to provide restitution to MSF for its payments to the Sergeant’s medical providers and lost wages. Lodahl appealed the application of the statutory definition of a “victim insurer,” the requirement to pay based on the constitutional subrogation limitations and an ability to pay. The Supreme Court found MSF is a victim insurer entitled to restitution, that the subrogation issue does not apply and that based on the individual situation, Lodahl’s restitution requirement should be waived. For workers’ compensation purposes, I am not going to focus on the ability to pay issues, but on the idea of a victim insurer and the Court’s reasoning regarding subrogation.
Without getting too far into the weeds regarding the law, Montana Criminal Procedure code 46-18-201 (5) identifies that as part of the criminal sentence, restitution to a “victim for pecuniary losses” can be imposed. Section 243 (1) (a) provides “pecuniary losses” includes medical expenses and loss of income, among other expenses. Finally, 243 (2) (a) (i) provides that a “Victim” is a person who suffers loss of property, bodily injury or death [as the result of a crime, an effort to prevent a crime or to apprehend the criminal] and further, (iv) provides a victim is an insurer “with a right of subrogation to the extent it has reimbursed the victim of the offense for pecuniary loss;”
The Court found MSF had a right of subrogation. The Court also found MSF qualified as a victim insurer and is therefore entitled to recover payments made for medical expenses and lost income. Lodahl argued that payment should not be made until the Sergeant was made whole under the current subrogation laws. The Court specifically identified the question of subrogation was moot (my word, not theirs) in that Lodahl was not in a position to assert the Sergeant’s subrogation rights. Interestingly as well, the Sergeant testified that the workers’ compensation benefits made them whole.
I do not have answers to the questions this raises, at least in my mind. I look forward to the legal debate on these points. Where the line between subrogation and restitution? Could the drunk driver who hits one of our workers, while on the job - and is determined to be guilty either by trial or plea agreement – owe restitution for the benefits provided by the insurer for the injured worker as a result of that accident?
In National Union Fire Insurance of Pittsburgh v Rainy 2021-5499 Workers’ Compensation Court (WCC) Judge Sandler determined that TTD benefits were improperly terminated based on a mistaken full-duty release and that the Department of Labor and Industry (DOLI) properly ordered reinstatement of those benefits.
Rainey suffered a broken ankle in October 2018 for which National Union accepted liability for. The treating physician signed a Medical Status Form which was interpreted by the Claims Examiner to mean that Rainey was at MMI with no permanent impairment. In fairness, the form apparently indicated that – however the case hinged, in my opinion, on whether that was the intent of the physician’s communication, or was it a mistake?
The Court determined that based on the full medical record, Rainey had made a strong case that the individual Medical Status Form in question was a mistake and MMI had not been reached nor was an impairment rating created. Therefore the WCC determined the treating physician did not intend to release Rainey to full duty at the TOI job.
The Court went on to identify that based on statutory language that MMI and a determination of no permanent impairment must be documented for TTD benefits to be properly terminated. If there is a permanent impairment, TTD benefits cannot be terminated nor converted to PPD benefits until the Coles criteria are met – proper notice of benefit termination and (emphasis added) the approval by the injured workers’ physician of a Job Analysis for a job the injured worker is suited for based on age, education, experience and physical abilities.
Governor’s Conference – West Yellowstone 9/29 – 10/1
This year the Governors Conference on Workers’ Compensation will be held in West Yellowstone from September 29 through October 1. Registration for the Governor’s Conference is available through the Department of Labor at 2021 Governor's Conference (regfox.com). At that site you will learn more about the guest speakers, who will include:
Workers’ Compensation Court Judge David Sandler, Montana District Court Judge Rod Souza Mayo Clinic Occupational and Aerospace Medical Physician Dr. Greg Vanichkachron IAIABC Executive Director Jennifer Wolf Montana Department of Labor Medical Director Dr. Maggie Cook-Shimanek North American Risk Services VP, Dr. Claire Muselman, PhD Behavioral Engineer and RESULTant Dr. Neil Dempster Founder and CEO of IncludeHealth, Inc. Ryan Eder They will be joined by MSF General Counsel Kevin Braun, Public Health and Safety Administrator for MT DPHHS Todd Harwell, MT ERD Epidemiologist Emily Healy and MT ERD Research Analyst Bri Lake.
MSIA Business and Annual Meeting 9/29 – Special Guest Speaker Bob Wilson.
This year, MSIA members Definiti Comp Solutions and Browning, Kaleczyc, Berry & Hoven will be sponsoring our breakfast and the meeting.
The MSIA Breakfast, sponsored by Definiti Comp Solutions, will start at 8:30a for members to discuss MSIA business – potential Bylaw changes, our proposed budget and priorities for the year and other business items that may come up.
The MSIA Annual meeting, sponsored by Browning, Kaleczyc, Berry & Hoven will start promptly at 9:00a with a virtual presentation to members and guests by Bob Wilson, President and CEO of workerscompensation.com.
Bob Wilson is a founding partner, President & CEO of WorkersCompensation.com. He is an experienced presenter for the workers’ compensation industry, and is the author of “From Bob’s Cluttered Desk”, a blog repeatedly named as a top workers’ compensation blog by LexisNexis. Additionally, he has been named one of the “50 Most Influential People in Workers’ Comp” by the SEAK National Workers’ Compensation and Occupational Medicine Conference. Known for an extraordinary sense of humor, his presentations reflect both entertaining and practical advice for both people managing claims as well as the people “picking up the tab”. Bob serves on the Board of Directors for Kids’ Chance of America, Inc., and is a founding board member and past president of Kids Chance of Florida, Inc. He resides with his wife in Sarasota, FL.
As this will be our first in person meeting since I started with MSIA, I especially look forward to seeing all of our members at the Conference. For those will not be able to join us in person, next month’s Update and meeting notices will include a proxy form.
MSIA Dues Due July 31, 2021
We have sent out the first notice, and will soon be sending out the second notice regarding MSIA dues for 2021 – 22. We had a great legislative year and look forward to doing the work to continue to improve the Montana workers’ compensation system during the interim period between sessions. I will be visiting with members as well as public policy leaders to help them understand the issues we face and the economic development opportunities for Montana with a system that works even better for injured workers, business and our medical providers. The system is not just one sided – all sides have to win, for the system to improve.
You can your dues pay via electronic funds transfer, check made out to MSIA and mailed to our office address below, or by credit card through out website, Montana Self Insurers' Association (mtselfinsurers.org). The password to the members only section of the website will change in August. Members will continue to have access to the latest information within Montana, research from across the country and system results. If you need more information or have questions, don’t hesitate to contact me.
EAIC Named and Studies Announced
I usually follow the Economic Affairs Interim Committee (EAIC) during non-session times as they typically study something within the Montana worker’s compensation system. The EAIC is holding their first meeting on July 22, starting at 9:30a in Room 152 of the Capitol building (COVID restrictions have been lifted and attendance is permitted).
Interim Committees are made up of an equal number from both parties and both House and Senate members. They elect their own chairs and have someone from the opposite party and Chamber as the vice chair. Interim Committees study topics are suggested during the session and are assigned by leadership for review. The Interim Committees also hear reports from the Executive Branche agencies they are assigned. The EAIC will hear from the Department of Labor and Industry (DOLI), the Commissioner of Securities and Insurance (CSI) and the State Fund, among others.
At the end of their work, typically in September prior to the next session, they will present a report to the full body of the legislature on the topics and either recommend legislation to address the issue – or reject support for the drafted language. Even rejected language can find its way into the legislative session, so rejection by the Interim Committee is not a death knell. Interim Committees will also review proposed rules by the Executive Agencies and have the opportunity to stop language from being put in place. Such was the situation during the 2019-20 interim when DOLI proposed an expansion of the case law language regarding the definition of “prosthetics” and “prosthetic devices.” MSIA spearheaded the legislative effort to put the 2001 case law language in the statute.
This is the first year in recent memory and possibly since I have been involved in Montana workers’ compensation starting in 1994, I do not see a workers’ compensation issue on their agenda. That does not mean they will not find something to review – they have that ability and can excersize that opportunity. I will continue to monitor the EAIC agendas and activities during the interim, but clearly there is no workers’ compensation issue currently on their agenda.
The study work announced by the committee is:
- HJ 48 - Study of Facial Recognition Technology
- HJ 49 - Study of Benefits Cliffs in Public Assistance Programs
- SJ 31 - Study Implementation of Montana's Recreational Marijuana Program
- Senators Kenneth Bogner – R Miles City Representatives
- Alice Buckley – D Bozeman
- Carlie Boland – D Great Falls
- Derek Harvey – D Butte
- Jason Ellsworth – R Hamilton
- Joshua Kassmier – R Fort Benton
- Shane Morigeau – D –Missoula
- Brandon Ler – R Savage
- Mark Noland – R Bigfork
- Katie Sullivan – D Missoula
All were members of either the House or Senate Business and Labor Committee during the last session and some are members of leadership. In short, if the EAIC pays some attention to it, we need to as well.
Welcome New MSIA Member – Comprehensive Outcomes Management Technologies (COMT)
Comprehensive Outcomes Management Technologies (COMT), headquartered in Denver, CO is a patient-centric assessment given to an injured worker that produces a graphical report charting progress to MMI and identifies injured workers with coping or resiliency issues immediately, targeting the 20% of claims likely to produce 80% of the costs in workers’ compensation. Visit their website at https://comtoutcomes.com/
COMT’s sister company, Sababa, offers a finite behavioral health therapy provider based on functional improvement if an injured worker warrants the treatment. Sababa does not have a psych claim associated with it, driven by MSK improvement. Sababa uses the COMT Patient Assessment to track MMI trend. With examiner approval, we will coordinate the referral and provide the results back to the provider. https://sababahealth.com/
- Early engagement of the injured worker via our COMT assessment tool to identify recovery/injury understanding based on injured workers’ responses.
- Stakeholder review and insight to responses which allows for customization of treatment plan, i.e. ongoing therapies, medication, surgeries. This will directly impact utilization, medical costs.
- Identification of underlying items, psychosocial issues and inconsistent responses that will preclude/impact recovery. Recognition of underlying items such as these allows for holistic approach in medical treatment.
COMT and its sister company, Sababa, have a demonstrable track record of closing claims sooner by managing expectations for the right care, right person, right time. They can help mitigate overutilization.
ERD Stakeholders Update – Last One on Tuesday 7/13 at 1:30p
This was the subject of Thursday’s Update Extra and as promised, I am providing it again. Advance registration is required, and ERD is very responsive to last minute (like that morning requests) for attendance. With your email to Nikki Hartman, she will provide the Zoom link for the meeting you want to attend. All are welcome to the FREE presentation tomorrow or Tuesday, both starting at 1:30p MST.
You will hear and learn about the ERD perspectives on the new telemedicine law, the new law where in Joint Petitions regarding the 5-year closure standard you will no longer have to provide the medical information from the claim file, the new electronic signature rules and medical fee schedule information and more based on the changes made during the legislative session.
The following information and topics will be presented during the 2021 Stakeholder meetings:
- 2021 Work Comp Legislation
- 5 Year Petition to Reopen Medical Benefits
- Reviews and Determinations
- Joint Petition Medical Records Change
- Electronic Signatures
- U & T Guidelines
- Drug Formulary
- Fee Schedule
- Claims Examiner Certification
- Work Comp Court Cases & Supreme Court Cases
- New Rates
** To register for the Tuesday session, please email email@example.com to receive the zoom meeting link.