Bill Text: MS HB394 | 2012 | Regular Session | Introduced
Bill Title: Division of Worker's Compensation, Office of the Governor; create.
Spectrum: Slight Partisan Bill (Democrat 2-1)
Status: (Failed) 2012-03-06 - Died In Committee [HB394 Detail]
Download: Mississippi-2012-HB394-Introduced.html
MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Insurance; Judiciary A
By: Representatives Clarke, Rogers (61st), Thomas
House Bill 394
AN ACT TO CREATE THE DIVISION OF WORKERS' COMPENSATION, OFFICE OF THE GOVERNOR; TO PROVIDE THAT THE DIVISION SHALL BE VESTED WITH ALL POWERS OF THE WORKERS' COMPENSATION COMMISSION; TO PROVIDE THAT CLAIMANT HEARINGS SHALL BE BROUGHT BEFORE ADMINISTRATIVE LAW JUDGES WITH APPEALS TAKEN DIRECTLY TO THE MISSISSIPPI SUPREME COURT; TO MODIFY THE PROCESS FOR APPOINTING ADMINISTRATIVE LAW JUDGES; TO AMEND SECTIONS 71-3-47 THROUGH 71-3-65, 71-3-85 AND 71-3-93 IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) There is hereby created a Division of Workers' Compensation, Office of the Governor. The Division of Workers' Compensation, Office of the Governor, shall be vested with all powers of the commission as it existed on June 30, 2012. All property, assets, funds and employees of the Workers' Compensation Commission on June 30, 2012, shall be under the direction and control of the Division of Workers' Compensation, Office of the Governor. Any reference to the Workers' Compensation Commission shall mean the Division of Workers' Compensation, Office of the Governor.
(2) As provided for in this act, the responsibility for administrative adjudication of workers' compensation claims shall be vested in the administrative law judges of the Division of Workers Compensation, Office of the Governor. The administrative law judges shall be appointed as provided for in this act. The Division of Workers' Compensation, Office of the Governor, shall be responsible for providing administrative support of the administrative law judges in carrying out their duties and responsibilities.
(3) Whenever the terms "commissioner" or "commissioners" appear in any section of Title 71, Chapter 3, it shall mean the administrative law judges of the Division of Workers' Compensation when the section relates to the hearing and adjudication of claims, and shall mean the Executive Director of the Division of Workers' Compensation when it relates to the administration of the division. Whenever the term "division" appears in this act, it shall mean the Division of Workers' Compensation, Office of the Governor.
SECTION 2. Section 71-3-47, Mississippi Code of 1972, is amended as follows:
71-3-47. Except as otherwise provided by this chapter, the details of practice and procedure in the settlement and adjudication of claims shall be determined by rules of the division, the text of which shall be published and be readily available to interested parties.
The administrative law judges of the division shall have full power and authority to determine all questions relating to the payment of claims for compensation. The administrative law judges shall make or cause to be made such investigation as they deem necessary and, upon application of either party or upon their own initiative, shall order a hearing, shall make or deny an award, and shall file the same in the office of the division.
* * * Upon the conclusion of any such hearing, the administrative law judges shall make or deny an award, and file the decision in the office of the division. Immediately after such filing, a notice of decision shall be sent to all interested parties. This decision shall be final unless it is appealed to the Mississippi Supreme Court in accordance with the provisions of this chapter.
SECTION 3. Section 71-3-49, Mississippi Code of 1972, is amended as follows:
71-3-49. (1) In case of default by the employer in the payment of any compensation due under an award for the period of thirty (30) days after payment is due and payable or, where the employer has failed to secure the payment of compensation to his employees as required, where there is such default in payment for a period of ten (10) days after same is due, any party in interest may file with the county clerk for the county in which the injury occurred or the county in which the employer has his principal place of business a certified copy of the decision of the administrative law judge awarding compensation or ending, diminishing or increasing compensation previously awarded, from which no appeal has been taken within the time allowed therefor or, if an appeal has been taken by an employer who has not complied with the provisions of Section 71-3-75, where he fails to deposit with the division the amount of the award as security for his payment within ten (10) days after same is due and payable, and thereupon judgment must be entered in the circuit court by the clerk of such county in conformity therewith immediately upon the filing of such decision. If the payment in default is an installment, the administrative law judge may declare the entire award due and judgment may be entered in accordance with the provisions of this section. Such judgment shall be entered in the same manner, have the same effect, and be subject to the same proceedings as though rendered in a suit duly heard and determined by the circuit court, except that no appeal may be taken therefrom. The court shall vacate or modify such judgment to conform to any later award or decision of the administrative law judge upon presentation of a certified copy of such award or decision. The award may be so compromised by the administrative law judge as in his discretion may best serve the interest of the persons entitled to receive the compensation or benefits. Neither the administrative law judge nor any party in interest shall be required to pay any fee to any public officer for filing or recording any paper or instrument or for issuing a transcript of any judgment executed in pursuance of this section.
(2) In case of default by a self-insurer in payment of any compensation due under an award where the default is due to the insolvency of the self-insurer, the claimant may file a claim based on the award with the Mississippi Workers' Compensation Self-Insurer Guaranty Association, pursuant to the rules and regulations of said association, as established and provided for in Sections 71-3-151 through 71-3-181.
SECTION 4. Section 71-3-51, Mississippi Code of 1972, is amended as follows:
71-3-51. The final award of the administrative law judge shall be conclusive and binding unless either party to the controversy shall, within thirty (30) days from the date of his filing in the office of the division and notification to the parties, appeal therefrom to the Supreme Court.
Such appeal may be taken by filing notice of appeal with the administrative law judge, whereupon the administrative law judge shall under his certificate transmit to the Supreme Court all documents and papers on file in the matter, together with a transcript of the evidence, the findings, and award, which shall thereupon become the record of the cause. Appeals shall be considered only upon the record as made before the administrative law judge. The Supreme Court shall always be deemed open for hearing of such appeals. The Supreme Court shall review all questions of law and of fact. If no prejudicial error be found, the matter shall be affirmed and remanded to the administrative law judge for enforcement. If prejudicial error is found, the same shall be reversed and the Supreme Court shall enter such judgment or award as the administrative law judge should have entered. An appeal from the administrative law judge to the Supreme Court shall not act as a supersedeas unless the court shall so direct, and then upon such terms as such court shall direct.
No controversy shall be heard by the administrative law judge or an award of compensation made therein while the same matter is pending either before a federal court or in any court in this state.
Any award of compensation made by the Supreme Court shall bear the same interest and penalties as do other judgments awarded in circuit court.
SECTION 5. Section 71-3-53, Mississippi Code of 1972, is amended as follows:
71-3-53. Upon his own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the administrative law judge may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. Such new order shall not affect any compensation previously paid, except that an award increasing the compensation rate may be made effective from the date of the injury; and if any part of the compensation due or to become due is unpaid, an award decreasing the compensation rate may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased rate shall be deducted from any unpaid compensation in such manner and by such method as may be determined by the administrative law judge.
SECTION 6. Section 71-3-55, Mississippi Code of 1972, is amended as follows:
71-3-55. (1) In making an investigation or inquiry or conducting a hearing, the administrative law judge shall not be bound by common law or statutory rules of evidence or by technical or formal rules or procedure, except as provided by this chapter, but may make such investigation or inquiry or conduct such hearing in such manner as best to ascertain the rights of the parties. Declarations of a deceased employee concerning the injury in respect of which the investigation or inquiry is being made or the hearing conducted shall be received in evidence and shall, if corroborated by other evidence, be sufficient to establish the injury.
(2) Hearings before the administrative law judge shall be open to the public and shall be stenographically reported or recorded and transcribed. The administrative law judge shall by regulations provide for the preparation of a record of the hearings and other proceedings.
(3) Unless otherwise ordered by the administrative law judge, hearings shall be conducted in the county where the injury occurred.
SECTION 7. Section 71-3-57, Mississippi Code of 1972, is amended as follows:
71-3-57. The administrative law judge shall regulate, by rules published by the division and available to the parties, the summoning, attendance, use, and compensation of witnesses, and determine the qualifications of specialists and their scale of fees as expert witnesses. Unless otherwise provided by the administrative law judge, witnesses summoned in a proceeding before the administrative law judge or whose depositions are taken shall receive the same fees and mileage as witnesses in civil cases in courts of record.
SECTION 8. Section 71-3-59, Mississippi Code of 1972, is amended as follows:
71-3-59. (1) If the court having jurisdiction of proceedings in respect of any claim or compensation order determined that the proceedings in respect of such claim or order have been instituted or continued without reasonable ground, the costs of such proceedings shall be assessed against the party who has so instituted or continued such proceedings.
(2) If the administrative law judge determines that proceedings in respect to a claim have been instituted, continued or delayed, including by way of appeal to the administrative law judge, without reasonable ground, the administrative law judge shall require the party who has so instituted, continued or delayed such proceedings or the attorney advising such party, or both, to pay the reasonable expenses, including attorney's fees, caused by such institution, continuance or delay to the opposing party. In addition to requiring the payment of reasonable expenses, including attorney's fees, to the opposing party, the administrative law judge may levy a civil penalty not to exceed Ten Thousand Dollars ($10,000.00) against such party, or attorney advising or assisting such party, or both, payable to the division. Any such civil penalty levied and collected by the division shall be deposited into the Administrative Expense Fund provided for in Section 71-3-97 and any such penalty which is not voluntarily paid may be collected by civil suit brought by the division.
SECTION 9. Section 71-3-61, Mississippi Code of 1972, is amended as follows:
71-3-61. (1) The administrative law judge shall have power to preserve and enforce order during hearings; to issue subpoenas for, to administer oaths to, and to compel the attendance and testimony of witnesses or the production of books, papers, documents, and other evidence, or the taking of depositions before any designated individual competent to administer oaths; to examine witnesses; and to do all things conformable to law which may be necessary to enable them effectively to discharge the duties of his office.
(2) If any person in proceedings before the administrative law judge disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, or neglects to produce, after having been ordered to do so, any pertinent book, paper, or document, or refuses to appear after having been subpoenaed or upon appearing refuses to take the oath as a witness, or after having taken the oath refuses to be examined according to law, the administrative law judge shall certify the facts to the court having jurisdiction in the place in which it is sitting, and the court shall thereupon in a summary manner hear the evidence as to the acts complained of and, if the evidence so warrants, punish such person in the same manner and to the same extent as for a contempt committed before the court, or commit such person upon the same condition as if the doing of the forbidden act had occurred with reference to the process of or in the presence of the court.
SECTION 10. Section 71-3-63, Mississippi Code of 1972, is amended as follows:
71-3-63. (1) No claim for legal services or for any other services rendered in respect of a claim or award for compensation, to or on account of any person, shall be valid unless approved by the administrative law judge or, if proceedings for review of the order of the administrative law judge in respect of such claim or award are had before any court, unless approved by such court. Any claim so approved shall, in the manner and to the extent fixed by the administrative law judge or such court, be a lien upon such compensation.
(2) Any person (a) who receives any fee, other consideration, or any gratuity on account of services so rendered, unless such consideration or gratuity is approved by the administrative law judge or such court, or (b) who makes it a business to solicit employment for a lawyer or for himself in respect of any claim or award for compensation, shall be guilty of a misdemeanor and, upon conviction thereof, shall for each offense be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment not to exceed one (1) year, or by both such fine and imprisonment.
(3) Representation of one other than himself or herself before the division shall be considered the practice of law, and all statutes applying to and regulating the practice in all other courts of law in this state shall likewise apply to practice before the administrative law judge, insofar as the qualifications of those practicing before the division are concerned. This subsection shall not be construed as tightening the rules of evidence which are otherwise relaxed in other sections of this chapter.
In no instance shall the amount recovered by an attorney for an appearance before the administrative law judge exceed twenty-five percent (25%) of the total award of compensation. Such limitations, however, shall not be construed as applying to a fee awarded for additional services by any superior court. Legal services rendered where no motion to controvert has been filed by either employer or employee shall be considered as consultation, and that factor shall be taken into consideration in awarding a fee. In all instances, fees shall be awarded on the basis of fairness to both attorney and client. Although exceptions may be made in the interest of justice, it shall be deemed conducive to the best interest of all concerned for the administrative law judge to approve contracts for attorney's fees voluntarily entered into between attorney and client, within the limitations hereinabove set out.
When an award of compensation becomes final and an attorney's fee is outstanding, a partial lump-sum settlement sufficient to cover the attorney's fee approved therein by the administrative law judge shall be made immediately, from payments last to become due, and the deductions allowed by the law shall be borne equally by the attorney and the client.
SECTION 11. Section 71-3-65, Mississippi Code of 1972, is amended as follows:
71-3-65. Every employer shall keep a record in respect of any injury to an employee. Such record shall contain such information of disability or death in respect of such injury as the division may by regulation require, and shall be available to inspection by the Division of Workers' Compensation or by any state authority at such times and under such conditions as the Division of Workers' Compensation may by regulation prescribe.
SECTION 12. Section 71-3-85, Mississippi Code of 1972, is amended as follows:
71-3-85. (1) There is hereby created the position of Executive Director of the Division of Workers' Compensation, who shall be appointed by the Governor for a term of four (4) years, with the advice and consent of the Senate. The executive director shall have at least five (5) years of experience in managing private or public entities. * * *
The executive director shall be the administrative head of the division and shall have the final authority in all matters relating to assignment of cases for hearing and trial and the administrative work of the division and its employees, and in the promulgation of rules and regulations * * *.
Upon the expiration of the term of an executive director, he shall continue to serve until his successor has been appointed. * * *
* * * Each administrative law judge shall receive an annual salary fixed by the Legislature.
(2) There is created an advisory committee on Workers' Compensation Rules and Regulations which shall be composed of two (2) members of the Workers' Compensation Section of the Mississippi Bar Association, elected by the section membership, and one (1) member appointed by the Executive Director of the Mississippi Trial Lawyers Association. All members shall serve for two-year terms. The advisory committee shall annually review existing rules and regulations of the division and shall propose amendments or new rules to the executive director as necessary. All appointments shall be made by August 1 of the year in which the new term begins. Annually, the committee shall report to the Legislature no later than December 31 of each year on the rules and regulations of the division and any needed amendments thereto. The staff of the division shall assist the committee in its efforts. All rules and regulations of the Mississippi Workers' Compensation Commission effective on June 30, 2012, shall remain in force and effect until such time as the executive director has proposed changes thereto adopted in accordance with the Mississippi Administrative Procedures Act.
(3) The Division of Workers' Compensation, acting through the executive director and the administrative law judges, shall have the powers and duties necessary for effecting the purposes of this chapter, including the powers of a court of record for compelling the attendance of witnesses, examining them under oath, and compelling the production of books, papers, documents and objects relevant to the determination of a claim for compensation, and the power to adopt rules and regulations and make or approve the forms relating to notices of injuries, payment of claims and other purposes. The authority of the division, the administrative law judges, and their duly authorized representatives to investigate and determine claims for compensation shall include the right to enter the premises where an injury occurred, to ascertain its causes and circumstances.
(4) The office of the division shall be situated in the City of Jackson, but hearings may be held at such places as it may deem most convenient for the proper and speedy performance of its duties. The division is authorized, if it deems it necessary for the convenient and efficient dispatch of business, to lease office space and facilities in other than publicly owned buildings.
(5) The division shall adopt detailed rules and regulations for implementing the purposes of this chapter in accordance with subsection (2) of this section. Such rules, upon adoption, shall be published and be at all reasonable times made available to the public and, if not inconsistent with law, shall be binding upon those participating in the responsibilities and benefits of the Workers' Compensation Law.
(6) The division shall adopt or approve the forms required for administering the chapter, such notices of injury, application for benefits, receipts for compensation and all other forms needed to assure the orderly and prompt operation of the law, and may require the exclusive use of any or all such approved forms.
SECTION 13. Section 71-3-93, Mississippi Code of 1972, is amended as follows:
71-3-93. The executive director shall appoint such officers and employees as are necessary adequately to administer the Workers' Compensation Law, including not more than eight (8) administrative judges to be appointed * * * with the consent of the Governor, from a list of persons nominated by the Workers' Compensation Section of the Mississippi Bar Association, a secretary, a statistician, a rehabilitation unit, and any other employees deemed essential to the administration of the law including court reporters whose salaries shall be the same as set for court reporters for circuit and chancery courts by Section 9-13-19. The annual salary of the executive director shall be equal to that of an administrative judge. An administrative judge shall be a member of The Mississippi * * * Bar and shall have a minimum of three (3) years' experience in the practice of law.
All salaries not specifically fixed by law shall be set by the division, acting through the executive director. The establishing of a merit system or career service for employees of the division is declared to be in the public interest because of the length of time required for understanding the details and problems involved in administering this legislation. The division, acting through the executive director, shall establish and enforce fair and reasonable rules for the appointment, promotion and demotion of personnel. All employees of the division with the exception of medical consultants shall devote their entire time to the duties of their office.
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SECTION 14. This act shall take effect and be in force from and after July 1, 2012.
