So many Rules, so little time. This article will concentrate on the Division of Workers’ Compensation (DOWC) Rules of Procedure 6, and Rule 8. In Colorado workers’ compensation claims, these two procedural rules can impact not only the exposure in a claim, but it’s trajectory as it works towards resolution or claim closure. Our firm sees common issues arise with clients regarding these two rules. Failure to comply with them can significantly impact the outcome of a claim.
WCRP Rule 6, is referred to as the offer of modified employment and Rule 8, is referred to as the designated provider list. This article explores the basics of the rules, the potential pitfalls, and ways to address issues when they arise, as well as how to best implement them and what to do if you find out the rules have not been properly implemented in your claim.
Although Rule 6 contains several means for stopping or suspending TTD, we will focus on the particular subpart of Rule 6, most commonly referred to as an offer of modified employment. It is typically used when an employer identifies a temporary job position for an injured worker when they are unable to perform their regular job duties due to work restrictions. While many employers have good intentions in identifying a position, the execution and completion of the rule per the requirements often becomes an issue for employers and the DOWC will reject an offer of modified employment, or an opposing counsel will seek to litigate it.
First a refresher course. The rule requires the following.:
- Once a job position that complies with the work restrictions has been identified by the employer, a modified job description should be sent to the injured workers/injured workers’ counsel and the authorized treating physician (ATP), asking the ATP to first approve the job description for the injured worker. This job description must contain a place where the ATP can sign off to approve and acknowledge the job modification & then return it to the sender.
- After the ATP has complied, the adjuster/employer should then send a certified letter offer of modified employment to the injured worker and copy to their attorney, accompanied by the job description signed by the ATP. The letter requests the injured worker to respond to the offer of modified employment within a specified time frame. The rule states there must be at least three days to comply with the rule. (Many employers ask for between 3 and 7 days).
- In addition to the above, in order for TTD benefits to be suspended if an Injured worker does not accept the job offer, the letter also needs to include a statement that benefits shall be terminated should the employee fail to timely respond to an offer of employment. It also needs to state that future offers of employment need not be in writing and a description of how and when employees are expected to learn of such future offers.
Failure to comply with any of these elements creates an invalid offer of modified employment. This creates ongoing exposure to temporary benefits while an injured worker receives the full benefits until the modified job offer is completed in compliance with Rule 6.
How do you comply with the above or remedy an invalid modified job offer? The obvious answer is that you comply with the rule above making sure that the authorized treating physician letter is also sent to the injured worker and/or their attorney concurrently. Another issue we sometimes see is the employer failing to specifically state the injured will have at least 3 days to respond.
You can always correct and resend a modified offer if the DOWC rejects the offer. This is the simplest solution and there is no limitation on sending multiple offers if done so in good faith and per the rule requirements. If there is some other reason that a modified offer was rejected or there is no longer a position available, looking to see if there is some other way to terminate benefits is the next option. Was there a voluntary resignation you can use to file a Petition to Terminate benefits? Or can you send a letter to the ATP requesting an update on maximum medical improvement? These may be other options to mitigate temporary benefits exposure.
As the claim progresses, an issue with Rule 6 is obviously exposure for TTD benefits. However, this could also have implications for the statutory cap as the claim progresses or even for settlement so the value of completing the Rule 6 offer of modified employment cannot be understated.
Our second rule, Rule 8, is sometimes referred to as the designated provider list. Simply put, the employer must furnish the injured worker with a copy of a list of medical providers for the workers’ compensation claim. This must be completed within seven business days of notice of the date of injury and must be done so in a verifiable manner. “Verifiable” could be an email or having the injured worker sign an acknowledgement of receipt if it is hand delivered. A poster in the office breakroom with a list of medical facilities is arguably not enough to comply with this rule.
Rule 8 has specific provisions depending on the geographic location of the claim where the injured worker is treating. For urban areas, the provider list must contain a list of at least four providers, one of at least a different ownership group. Fewer providers are permitted for more rural areas.
Rule 8 is very straightforward and can easily be addressed within the first few days after the injury has occurred. The common issues here are that the list of providers is either not provided to the injured worker within the time frame specified by the rule, or if it was provided, it was done so with no verifiable means. “Verifiable” means the list has to be sent via email and/or certified mail or, if you hand it to the injured worker, they should have to sign for it so there can be no dispute later that it was provided.
Rule 8 has the potential for a huge impact on the claim due to the fact that if it was not properly complied with, an injured worker has the right to select their own authorized treating physician (ATP). Obviously, this could have a significant impact on the claim if the injured worker is represented and his counsel steers them to an ATP who is very injured worker oriented, potentially delaying MMI and requesting additional treatment. The impact may be on both the medical benefits and indemnity if the ATP selected by the injured worker prolongs treatment and delays MMI.
To overcome potential problems, we recommend insurers follow up with the employer early on in the claim to confirm the employer provides a valid Rule 8 letter to the injured worker within a few days of the injury in a verifiable manner. Employers should prepare standard lists of providers and protocols for providing these lists for any potential future claims. If employers are not already providing this, defense counsel or the insurer can assist in creating this provider list to make sure it complies with Rule 8. Many larger employers already have this in place.
What happens if you fail to provide the list or fail to do so in a verifiable manner? In this instance, we recommend mitigating some of the issue by reaching a stipulation on a particular ATP with the injured worker or their counsel, if represented. The stipulation would be for an ATP that an injured workers’ Counsel may agree to. However, we would recommend that the insurer or defense counsel propose the possible ATP rather than agreeing on the first one proposed by an injured workers’ counsel. This often means stipulating to a physician who may still be somewhat injured -worker oriented, but who at least can provide a reasonable basis for MMI and impairment ratings. Ideally, the ATP would also be somewhat communicative by providing timely medical reports once requested by the parties and even engaging in Samms Conferences periodically. Keep in mind that a stipulation may still prolong treatment or delay MMI but likely much less so that a physician that the injured worker selects themselves.
Conclusions: Rules 6 and 8 are crucial Rules of Procedure that should always be addressed when adjusting claims. The employer and their insurer should work as a team, both being aware of and complying with these rules from the first few days of the date of injury so as to mitigate the long-term exposure. Defense counsel can also assist by reviewing proposed Rule 8 lists or modified offers of employment for compliance.