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Montana Administrative Register Notice 24-29-266 No. 13   07/12/2012    
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BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY

OF THE STATE OF MONTANA

 

In the matter of the adoption of NEW RULES I through VI pertaining to stay at work/return to work for workers' compensation

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NOTICE OF ADOPTION

 

TO:  All Concerned Persons

 

1.  On April 26, 2012, the Department of Labor and Industry published MAR Notice No. 24-29-266 pertaining to the public hearing on the proposed adoption of the above-stated rules at page 836 of the 2012 Montana Administrative Register, Issue Number 8.

 

2.  The department has adopted the following rules as proposed:

 

NEW RULE III (24.29.1811) DUTIES OF THE DEPARTMENT

 

NEW RULE IV (24.29.1815) PAYMENT SCHEDULE FOR DEPARTMENT-PROVIDED SAW/RTW ASSISTANCE

 

NEW RULE V (24.29.1821) VOCATIONAL REHABILITATION COUNSELOR POOL FOR DEPARTMENT-PROVIDED SAW/RTW ASSISTANCE

 

NEW RULE VI (24.29.1803) APPLICABILITY

 

3.  The department has adopted the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:

 

NEW RULE I (24.29.1801) DEFINITIONS  As used in this subchapter, the following definitions apply:

(1)  remains as proposed.

(2)  "Injured worker" means an individual who has filed a claim for a workers' compensation injury or occupational disease and who does not meet the definition of a disabled worker. The term "injured worker" includes an individual who meets the definition of a disabled worker.

(3)  through (10) remain as proposed.

 

AUTH: 39-71-203, 39-71-1051, MCA

IMP:    39-71-105, 39-71-116, 39-71-1011, 39-71-1036, MCA

 

NEW RULE II (24.29.1807) RESPONSIBILITIES OF THE INSURER

(1)  remains as proposed.

(2)  The insurer shall designate a single point of contact with authority to coordinate all department requests for SAW/RTW assistance for injured workers and shall provide the department with written notice of the contact person's name or position title, telephone number, e-mail address, and mailing address.  When contact information changes, the insurer shall update the department a minimum of ten business days in advance of the change.

(3)  remains as proposed.

(4)  When a request for SAW/RTW assistance is made directly to the insurer and the insurer declines to provide SAW/RTW assistance or denies liability for an injured worker's claim, the insurer shall notify the injured worker and the department in writing within three business days of a request for assistance.

(5)  After the department has initiated SAW/RTW assistance to an injured worker, the insurer shall notify the department in writing within three business days of the insurer's acceptance or denial of liability for an injured worker's claim.

(6)  through (8) remain as proposed.

 

AUTH: 39-71-203, 39-71-1051, MCA

IMP:    39-71-105, 39-71-1011, 39-71-1031, 39-71-1041, 39-71-1042, 39-71-1043, 39-71-1049, MCA

 

4.  The department has thoroughly considered the comments and testimony received.  A summary of the comments received and the department's responses are as follows:

 

COMMENT #1:  One commenter suggested that the inclusion of "disabled worker" in the proposed definition for "injured worker" in New Rule I be eliminated because an "injured worker" only qualifies for SAW/RTW assistance pursuant to 39-71-1011(9), MCA, prior to the worker being determined as a "disabled worker," which must be established by objective medical findings, pursuant to 39-71-1011(3), MCA.

 

RESPONSE #1:  The department concurs and has amended New Rule I to clarify that an injured worker who qualifies for SAW/RTW assistance had not been designated a "disable worker," pursuant to 39-71-1011(3), MCA.

 

COMMENT #2:  Two commenters suggested that New Rule II be amended to clarify the process for notification to the department when the insurer is the first point of contact when SAW/RTW assistance is requested.  The proposed language separates the insurer's decision to provide SAW/RTW assistance from the acceptance or denial of the claim.  Claim acceptance or denial might not occur within three business days of the request for assistance.

 

RESPONSE #2:  The department concurs with this comment, and has amended New Rule II accordingly.

 

COMMENT #3:  A commenter questioned whether the requirement in New Rule II that an insurer designate a single point of contact to coordinate the provision of SAW/RTW assistance requires the insurer to designate an individual person for this purpose.

RESPONSE #3:  The department requires a single point of contact to coordinate requests for SAW/RTW Assistance.  The department has amended New Rule II to allow an insurer to identify the point of contact by either a named person or position title.  The insurer must provide the department with the name or position title, telephone number, e-mail address, and mailing address of the single point of contact for the insurer.  Additionally, the insurer must update the department a minimum of ten days in advance of any point of contact change.

 

COMMENT #4:  A commenter stated that it was not clear what is the purpose is served with the requirement in New Rule II (5) that the insurer provide three-day notification to the department.

 

RESPONSE #4:  The three-day notification to the department is a statutory requirement.  If the insurer does not timely notify the department that it is acting to provide SAW/RTW assistance, the department is required to obtain SAW/RTW assistance for the worker. 

 

/s/  MARK CADWALLADER                       /s/  KEITH KELLY                             

Mark Cadwallader                                         Keith Kelly

Alternate Rule Reviewer                               Commissioner

                                                                         Montana Department of Labor and Industry

           

Certified to the Secretary of State July 2, 2012

 

 

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