REPORT TITLE:
Workers' Compensation


DESCRIPTION:
Amends workers' compensation laws regarding independent medical
examinations so as to promote the quality of the examination
reports and the quality of services.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2389
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO WORKERS' COMPENSATION.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Section 386-21, Hawaii Revised Statutes, is
 
 2 amended by amending subsection (b) to read as follows:
 
 3      "(b)  Whenever medical care is needed, the injured employee
 
 4 may select any physician or surgeon who is practicing on the
 
 5 island where the injury was incurred to render such care.  If the
 
 6 services of a specialist are indicated, the employee may select
 
 7 any such physician or surgeon practicing in the State.  The
 
 8 director may authorize the selection of a specialist practicing
 
 9 outside the State where no comparable medical attendance within
 
10 the State is available.  Upon procuring the services of such
 
11 physician or surgeon, the injured employee shall give proper
 
12 notice of the employee's selection to the employer within a
 
13 reasonable time after the beginning of the treatment.  If for any
 
14 reason during the period when medical care is needed, the
 
15 employee wishes to change to another physician or surgeon, the
 
16 employee may do so in accordance with rules prescribed by the
 
17 director.  If the employee is unable to select a physician or
 
18 surgeon and the emergency nature of the injury requires immediate
 
19 medical attendance, or if the employee does not desire to select
 

 
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 1 a physician or surgeon and so advises the employer, the employer
 
 2 shall select the physician or surgeon.  Such selection, however,
 
 3 shall not deprive the employee of the employee's right of
 
 4 subsequently selecting a physician or surgeon for continuance of
 
 5 needed medical care.
 
 6      The employee's treating physician shall have the right to
 
 7 diagnose and treat the employee in accordance with the accepted
 
 8 standard of medical care in the community.  The employee's
 
 9 physician shall further have the discretion to accept or reject
 
10 the prescribed treatment of any applicable managed care or health
 
11 maintenance provider that is not in the best interest of the
 
12 employee."
 
13      SECTION 2.  Section 386-79, Hawaii Revised Statutes, is
 
14 amended to read as follows:
 
15      "§386-79  Medical examination by employer's physician.  (a)
 
16 After an injury and during the period of disability, the
 
17 employee, whenever ordered by the director of labor and
 
18 industrial relations, shall submit to examination, at reasonable
 
19 times and places, by a duly qualified physician or surgeon
 
20 [designated and] paid by the employer[.] and selected by the
 
21 employee from a list of physicians who are licensed under the
 
22 same chapter of title 25 as the treating physician, and if
 
23 applicable, are board certified by the same professional
 

 
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 1 associations as the treating physician.  A complete list shall be
 
 2 provided of all the physicians who are licensed under the same
 
 3 chapter of title 25 as the treating physician, and if applicable,
 
 4 and board certified by the same professional associations as the
 
 5 treating physician.  This list shall only include those
 
 6 physicians who provide these examinations for all the employers
 
 7 in the State.  These lists shall be provided by the professional
 
 8 associations and submitted to the treating physician upon
 
 9 request.  The examining physician, hired by the employer, shall
 
10 be of the same profession as the treating physician and not
 
11 another profession.  There may be an informal conflict resolution
 
12 meeting if agreed upon between the treating physician, employer,
 
13 employee, and employee's representative to discuss diagnosis,
 
14 treatment plan, prognosis, and referrals.  The meeting shall
 
15 occur prior to any examination by the employer's physician or
 
16 formal hearings.  The meeting shall focus on resolving conflicts
 
17 and establishing meaningful communication between the employer
 
18 and the treating physician and patient.  The employee shall have
 
19 the right to have a physician or surgeon designated and paid by
 
20 the employee present at the examination, and in the event that
 
21 the employee's selected physician is unable to attend the
 
22 examination, the employee shall have the right to have the
 
23 examination videotaped for reference by the physician, which
 

 
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 1 right, however, shall not be construed to deny to the employer's
 
 2 physician the right to visit the injured employee at all
 
 3 reasonable times and under all reasonable conditions during total
 
 4 disability.  The employee, or the employee's duly authorized
 
 5 representative shall have the further right to examine and
 
 6 challenge the employer's physician's report before the employer
 
 7 is entitled to use the report in rendering a decision on the
 
 8 compensability of the employee's claim.  Challenges to the
 
 9 employer's physician's report shall be made in the same manner as
 
10 if the challenge were a claim for compensation under section 386-
 
11 86.
 
12      (b)  If an employee refuses to submit to, or in any way
 
13 obstructs [such] the examination, the employee's right to claim
 
14 compensation for the work injury shall be suspended until the
 
15 refusal or obstruction ceases and no compensation shall be
 
16 payable for the period during which the refusal or obstruction
 
17 continues.
 
18      (c)  In cases where the employer is dissatisfied with the
 
19 progress of the case or where major and elective surgery, or
 
20 either, is contemplated, the employer may appoint a physician or
 
21 surgeon of the employer's choice who shall examine the injured
 
22 employee and make a report to the employer.  If the employer
 
23 remains dissatisfied, this report may be forwarded to the
 

 
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 1 director.
 
 2      Employer requested examinations under this section shall not
 
 3 exceed more than one per case unless good and valid reasons exist
 
 4 with regard to the medical progress of the employee's treatment.
 
 5 The cost of conducting the ordered medical examination shall be
 
 6 limited to the complex consultation charges governed by the
 
 7 medical fee schedule established pursuant to section
 
 8 386-21(c)[.]; provided that the cost of records review shall not
 
 9 exceed $60 an hour for a total of not more than three hours and
 
10 that all medical records, including billing records, reviewed by
 
11 the employer's physician for the examination shall be attached to
 
12 the examination report.
 
13      For the purposes of this section, "duly qualified" means
 
14 that the physician meets the following requirements:
 
15      (1)  The physician has an active professional and
 
16           occupational license under title 25, and has maintained
 
17           an active practice in this State during the five
 
18           consecutive years prior to the employer requested
 
19           examination;
 
20      (2)  Not more than one-half of the physician's billings
 
21           under the physician's practice is attributable to
 
22           revenues derived from employer requested examinations;
 
23           and
 

 
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 1      (3)  The physician has not been found in violation of this
 
 2           section at any time during the five consecutive years
 
 3           prior to the employer requested examination.
 
 4      Under no circumstance shall the employer deny compensability
 
 5 based solely on the findings, conclusions, opinions, or
 
 6 recommendations of the employer's physician as found in the
 
 7 employer's physician's report."
 
 8      SECTION 3.  Section 386-96, Hawaii Revised Statutes, is
 
 9 amended by amending subsection (d) to read as follows:
 
10      "(d)  Within fifteen days after being requested to do so by
 
11 the injured employee or the employee's duly authorized
 
12 representative, the employer shall furnish the employee or the
 
13 employee's duly authorized representative with copies of all
 
14 medical reports relating to the employee's injury that are in the
 
15 possession of the employer.  Copies of medical reports, such as
 
16 reports of the employer requested examination, which come into
 
17 the possession of the employer subsequent to that initial
 
18 request, shall be furnished to the employee or the employee's
 
19 duly authorized representative within fifteen days of the
 
20 employer's receipt of the report.  The copies shall be furnished
 
21 at the expense of the employer.  The employer shall allow the
 
22 employee or the employee's duly authorized representative to
 
23 inspect and copy transcripts of depositions of medical witnesses,
 

 
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 1 relating to the employee's injury, in the possession of the
 
 2 employer.  Any employer who fails to furnish medical reports or
 
 3 to allow inspection and copying of transcripts of depositions of
 
 4 medical witnesses, as required by this paragraph shall be fined
 
 5 in an amount not to exceed $1,000."
 
 6      SECTION 4.  Section 386-97.5, Hawaii Revised Statutes, is
 
 7 amended by amending subsection (a) to read as follows:
 
 8      "(a)  Any person who, after twenty-one days written notice
 
 9 and the opportunity to be heard by the director, is found to have
 
10 violated any provision of this chapter or rule adopted thereunder
 
11 for which no penalty is otherwise provided, shall be fined not
 
12 more than $250 for each offense.  Any physician who violates
 
13 section 386-79 shall not be allowed to perform an examination
 
14 under section 386-79 for a period of not less than five years
 
15 subsequent to the violation."
 
16      SECTION 5.  Statutory material to be repealed is bracketed.
 
17 New statutory material is underscored.
 
18      SECTION 6.  This Act shall take effect upon its approval.
 
19 
 
20                           INTRODUCED BY:  _______________________