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Senate Engrossed House Bill |
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State of Arizona House of Representatives Fifty-second Legislature Second Regular Session 2016
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HOUSE BILL 2240 |
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AN ACT
Amending section 23‑941, Arizona Revised Statutes; AMending title 23, chapter 6, article 3, Arizona Revised Statutes, by adding section 23‑954; amending sections 23‑1044, 23‑1062 and 23-1070.01, Arizona Revised Statutes; relating to workers' compensation.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 23-941, Arizona Revised Statutes, is amended to read:
23-941. Hearing rights and procedure
A. Subject to the provisions of section 23‑947, any interested party may file a request for a hearing concerning a claim.
B. A request for a hearing shall be made in writing, be signed by or on behalf of the interested party and including his include the interested party's address, stating state that a hearing is desired, and be filed with the commission.
C. The commission shall refer the request for the hearing to the administrative law judge division for determination as expeditiously as possible. The presiding administrative law judge may dismiss a request for hearing when if it appears to his the presiding administrative law judge's satisfaction that the disputed issue or issues have been resolved by the parties. Any interested party who objects to such dismissal may request a review pursuant to section 23‑943.
D. At least twenty days' prior notice of the time and place of the hearing shall be given to all parties in interest by mail at their last known address. In the case of a hearing concerning suspension of benefits, pursuant to section 23‑1026, 23‑1027 or 23‑1071, only ten days' prior notice need be given is required. Hearings shall be held in the county where the workman resided at the time of the injury or such other another place selected by the administrative law judge.
E. A record of all proceedings at the hearing shall be made but need not be transcribed unless a party applies to the court of appeals for a writ of certiorari pursuant to section 23‑951. The record of the proceedings if not transcribed, shall be kept for at least two years but may be destroyed after such that time if a transcription is not requested.
F. Except as otherwise provided in this section and rules or of procedure established by the commission, the administrative law judge is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure and may conduct the hearing in any manner that will achieve substantial justice.
G. Any party shall be entitled to issuance and service of subpoenas under the provisions of section 23‑921. Any party or his the party's representative may serve such subpoenas.
H. Any interested party or his the interested party's authorized agent shall be entitled to inspect any claims file of the commission, provided that such authorization is filed in writing with the commission.
I. Any interested party is entitled to one change of administrative law judge as a matter of right. To exercise the right to a change of administrative law judge, the interested party shall file a notice of change of administrative law judge. The notice of change of administrative law judge shall:
1. Be signed by the interested party or the interested party's authorized agent.
2. State the name of the administrative law judge to be changed.
3. Certify that the interested party or the interested party's authorized agent has timely filed the notice of change of administrative law judge. A notice of change of administrative law judge as a matter of right is timely if filed not more than thirty days after the date of the notice of hearing or not more than thirty days after a new administrative law judge is assigned to the claim if another interested party or the interested party's authorized agent has filed a notice of change of administrative law judge as a matter of right.
4. Certify that the interested party or the interested party's authorized agent has not previously been granted a change of administrative law judge as a matter of right for the claim.
I. J. Within thirty days after the date of notice of hearing Any interested party to a hearing before the commission or the interested party's authorized agent may file an affidavit for change of administrative law judge for cause against any hearing officer of the commission hearing such matters or commencing to hear such matter, setting a presiding administrative law judge that sets forth any of the grounds as provided in subsection J K of this section. , and The chief administrative law judge shall immediately transfer the matter to another officer of the commission who shall preside therein. Not more than one change of administrative law judge shall be granted to any one party. administrative law judge. An affidavit for change of administrative law judge for cause shall be filed within the time frames provided in subsection I of this section.
J. K. Grounds which that may be alleged as provided in subsection I J of this section for change of administrative law judge for cause are:
1. That the administrative law judge has been engaged as counsel in the hearing prior to before appointment as administrative law judge.
2. That the administrative law judge is otherwise interested in the hearing.
3. That the administrative law judge is of kin or otherwise related to a party to the hearing.
4. That the administrative law judge is a material witness in the hearing.
5. That the party filing the affidavit has cause to believe and does believe that on account of the bias, prejudice, or interest of the administrative law judge he the administrative law judge cannot obtain a fair and impartial hearing.
L. For the purposes of subsections I and J of this section, the employer and the employer's insurance carrier are considered a single party unless the employer's and the employer's insurance company's interests are in conflict.
K. M. After final disposition of the proceedings in which they are used, exhibits marked for identification or introduced as evidence at hearings or proceedings which that cannot be readily copied, photocopied, mechanically reproduced or otherwise preserved as a document for inclusion in the record of the proceedings may be disposed of in the following manner:
1. By written notice, the attorneys of record, or if none, the parties, shall be notified that the counsel or the party introducing such the exhibit may claim it at the industrial commission within sixty days.
2. After sixty days following notification, any such exhibit remaining in the custody of the industrial commission shall be disposed of as state surplus property pursuant to the direction of the department of administration, surplus property division. A written description of any such the exhibit shall be included in the record to preserve its the exhibit's identity.
Sec. 2. Title 23, chapter 6, article 3, Arizona Revised Statutes, is amended by adding section 23-954, to read:
23-954. Payment of interest on awards
Interest on the payment of benefits shall be paid at a rate of interest at the lesser of ten percent per annum or a rate per annum that is equal to one percent plus the prime rate as published by the board of governors of the federal reserve system in statistical release h.15 or any publication that may supersede it on the date benefits are paid. Interest shall be paid only in the following instances:
1. On an award entered by the commission or by notice of claim status awarding permanent partial disability benefits pursuant to section 23-1044, subsection B or C or permanent total disability benefits pursuant to section 23-1045, subsection B or C, if benefits are not paid within ten days after the date the award or notice becomes final.
2. On a claim for dependent benefits, if the claim is denied and subsequently accepted or found compensable by award of the commission, from the date the claim for benefits was filed.
Sec. 3. Section 23-1044, Arizona Revised Statutes, is amended to read:
23-1044. Compensation for partial disability; computation
A. For temporary partial disability there shall be
paid during the period thereof sixty‑six and two‑thirds per cent percent of the difference between the wages earned before the
injury and the wages which that the injured person is
able to earn thereafter. Unemployment benefits received during the
period of temporary partial disability and fifty per
cent of retirement and pension benefits received from the insured or self‑insured
employer during the period of temporary partial disability shall be
considered wages able to be earned.
B. Disability shall be deemed permanent partial
disability if caused by any of the following specified injuries, and
compensation of fifty‑five per cent
percent of the average
monthly wage of the injured employee, in addition to the compensation for
temporary total disability, shall be paid for the period given in the following
schedule:
1. For the loss of a thumb, fifteen months.
2. For the loss of a first finger, commonly called the index finger, nine months.
3. For the loss of a second finger, seven months.
4. For the loss of a third finger, five months.
5. For the loss of the fourth finger, commonly called the little finger, four months.
6. The loss of a distal or second phalange of the thumb or the distal or third phalange of the first, second, third or fourth finger, shall be considered equal to the loss of one‑half of the thumb or finger, and compensation shall be one‑half of the amount specified for the loss of the entire thumb or finger.
7. The loss of more than one phalange of the thumb or finger shall be considered as the loss of the entire finger or thumb, but in no event shall the amount received for more than one finger exceed the amount provided for the loss of a hand.
8. For the loss of a great toe, seven months.
9. For the loss of a toe other than the great toe, two and one‑half months.
10. The loss of the first phalange of any toe shall be considered equal to the loss of one‑half of the toe and compensation shall be one‑half of the amount for one toe.
11. The loss of more than one phalange shall be considered as the loss of the entire toe.
12. For the loss of a major hand, fifty months, or of a minor hand, forty months.
13. For the loss of a major arm, sixty months, or of a minor arm, fifty months.
14. For the loss of a foot, forty months.
15. For the loss of a leg, fifty months.
16. For the loss of an eye by enucleation, thirty months.
17. For the permanent and complete loss of sight in one eye without enucleation, twenty‑five months.
18. For permanent and complete loss of hearing in one ear, twenty months.
19. For permanent and complete loss of hearing in both ears, sixty months.
20. The permanent and complete loss of the use of a finger, toe, arm, hand, foot or leg may be deemed the same as the loss of any such member by separation.
21. For the partial loss of use of a finger, toe,
arm, hand, foot or leg, or partial loss of sight or hearing, fifty per cent percent of the average monthly wage during that proportion of
the number of months in the foregoing schedule provided for the complete loss
of use of such member, or complete loss of sight or hearing, which the partial
loss of use thereof bears to the total loss of use of such member or total loss
of sight or hearing. In For the purposes of this
paragraph, "loss of use" means a loss of physical function of the
affected member, sight or hearing. The effect on an employee's
ability to return to the employee's occupation at the time of the injury shall
not be considered in establishing the percentage of loss under this section,
except that if the employee is unable to return to the work the employee was
performing at the time the employee was injured due to the total or partial loss
of use, compensation pursuant to this section shall be calculated based on
seventy‑five per cent percent of the average
monthly wage.
22. For permanent disfigurement about the head or
face, which shall include including injury to or loss
of teeth, the commission may, in accordance with the provisions of pursuant to section 23‑1047,
may allow such sum for
compensation thereof as it deems just, in accordance with the proof submitted,
for a period of not to exceed more than eighteen months.
C. In cases not enumerated in subsection B of this
section, if the injury causes permanent partial disability for work, the
employee shall receive during such disability compensation equal to fifty‑five
per cent percent of the difference between the
employee's average monthly wages before the accident and the amount which that
represents the employee's reduced monthly earning capacity resulting
from the disability, but the payment shall not continue after the disability
ends, or the death of the injured employee, and in case the partial disability
begins after a period of total disability, the period of total disability shall
be deducted from the total period of compensation.
D. In determining the amount which that
represents the reduced monthly earning capacity for the purposes of
subsections A and C of this section, consideration shall be given, among other
things, to any previous disability, the occupational history of the injured
employee, the nature and extent of the physical disability, the type of work
the injured employee is able to perform subsequent
to after the
injury, any wages received for work performed subsequent
to after the
injury and the age of the employee at the time of injury. If the employee is
unable to return to work or continue working in any employment after the injury
due to the employee's termination from employment for reasons that are
unrelated to the industrial injury, the commission may consider the wages that
the employee could have earned from that employment as representative of the
employee's earning capacity. A determination of earning capacity
that is based on wages that could have been earned from previously terminated
employment is subject to change under subsection F of this section and an
employee retains the right to later establish that the employee's reduced
earning capacity is related in whole or in part to the industrial injury.
E. In case there is a previous disability, as the loss of one eye, one hand, one foot or otherwise, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury.
F. For the purposes of subsection C of this section,
the commission, in accordance with the provisions of section 23‑1047 when
the physical condition of the injured employee becomes stationary, shall
determine the amount which that represents the reduced
monthly earning capacity and upon on such determination make an
award of compensation which shall be that is subject to change in
any of the following events:
1. Upon On a showing of a change in
the physical condition of the employee subsequent to
after such findings
and award arising out of the injury resulting in the reduction or increase of
the employee's earning capacity.
2. Upon On a showing of a reduction
in the earning capacity of the employee arising out of such injury where there
is no change in the employee's physical condition, subsequent
to after the
findings and award.
3. Upon On a showing that the
employee's earning capacity has increased subsequent
to after such
findings and award.
G. The commission may adopt a schedule for rating
loss of earning capacity and reasonable and proper rules to carry out the provisions of this section. In all
cases involving this section, except for cases under subsection B of this
section, or in cases involving a request pursuant to section 23‑1061,
subsection J for disability compensation, if any issue is raised regarding
whether the injured employee has suffered a loss of earning capacity because of
an inability to obtain or retain suitable work, the following apply:
1. The employer or carrier may present evidence showing that the inability to obtain suitable work is due, in whole or in part, to economic or business conditions, or other factors unrelated to the industrial injury. The injured employee may present evidence showing that the inability to obtain suitable work is due, in whole or in part, to the industrial injury or limitations resulting from the injury. The administrative law judge shall consider all such evidence in determining whether and to what extent the injured employee has sustained any loss of earning capacity.
2. In cases involving loss of employment, the employer or carrier may present evidence showing that the injured employee was terminated from employment or has not obtained suitable work, or both, due, in whole or in part, to economic or business conditions, or other factors unrelated to the injury. The injured employee may present evidence showing that such termination or inability to obtain suitable work is due, in whole or in part, to the industrial injury or limitations resulting from the injury. The administrative law judge shall consider all such evidence in determining whether and to what extent the injured employee has sustained any loss or additional loss of earning capacity.
H. Any single injury or disability that is listed in subsection B of this section and that is not converted into an injury or disability compensated under subsection C of this section by operation of this section shall be treated as scheduled under subsection B of this section regardless of its actual effect on the injured employee's earning capacity.
Sec. 4. Section 23-1062, Arizona Revised Statutes, is amended to read:
23-1062. Medical, surgical, hospital benefits; translation services; commencement of compensation; method of compensation
A. Promptly, on notice to the employer, every injured employee shall receive medical, surgical and hospital benefits or other treatment, nursing, medicine, surgical supplies, crutches and other apparatus, including artificial members, reasonably required at the time of the injury, and during the period of disability. Such benefits shall be termed "medical, surgical and hospital benefits."
B. Medical, surgical and hospital benefits include translation services, if needed. A carrier, self‑insurance pool or employer that does not direct care pursuant to section 23‑1070 may choose the translator if the translator is certified by an outside agency and is not an employee of the carrier, self‑insurance pool or employer. If the carrier, self‑insurance pool or employer is unable to locate a certified translator for the particular language or dialect needed, the parties may agree on a translator who is not a certified translator.
B. C. The first
installment of compensation is to be paid no later than the twenty‑first
day after written notification by the commission to the carrier of the filing
of a claim except where unless the right to
compensation is denied. Thereafter, compensation shall be paid at
least once each two weeks during the period of temporary total disability and
at least monthly thereafter. Compensation shall not be paid for the
first seven days after the injury. If the incapacity extends beyond
the period of seven days, compensation shall begin on the eighth day after the
injury, but if the disability continues for one week beyond such seven days,
compensation shall be computed from the date of the injury.
C. D. Compensation
shall be made by negotiable instrument, payable immediately on demand or, at
the election of the employee and if offered by the employer or carrier, by
another commonly accepted method for transferring money by banking
institutions, including electronic fund transfers to the employee's account or
a prepaid debit card account that is established for the purpose of making
direct electronic payment to the employee.
Sec. 5. Section 23-1070.01, Arizona Revised Statutes, is amended to read:
23-1070.01. Request for early hearing; stipulation; action of commission
A. If a request for hearing filed in connection with a change of physician under section 23‑1070 alleges, by affidavit, that immediate and irreparable injury, loss or damage will result if such the hearing is not held prior to before the times otherwise prescribed by article 3 of this chapter or if all interested parties, in person or by counsel, stipulate in such the request for hearing that such the hearing should be held prior to before the times otherwise prescribed by article 3 of this chapter, the commission shall:
1. Immediately issue a notice to all parties setting a hearing date not more than fifteen days later.
2. Require that the administrative law judge, who shall not be subject to the notice or affidavit for change prescribed by section 23‑941, subsection I or J, determine the matter and make an award, if any, within five days after completion of the hearing.
B. All other procedures prescribed for subsequent actions with regard to such the hearing or award shall be as otherwise prescribed by law.
Sec. 6. Industrial commission of Arizona; workers' compensation fraud; self‑insured employers; recommendations
A. The industrial commission of Arizona shall research and make recommendations on ways to allow for investigations into the act or practice of workers' compensation fraud impacting self‑insured employers in a manner consistent with section 20‑466, Arizona Revised Statutes, as applicable, but not duplicative of the functions of another state agency, including the department of insurance.
B. The industrial commission of Arizona shall make recommendations on or before December 31, 2016, to the governor, the speaker of the house of representatives, the president of the senate and chairpersons of the senate commerce and workforce development committee and the house of representatives insurance committee.