The 2012 regular session of the Mississippi Legislature resulted in Senate Bill 2576, containing a number of changes to the state workers’ compensation laws that are effective July 1, 2012 and are of interest to small and large businesses alike.
Workers’ compensation statutes now will be construed “impartially,” without any presumption in favor of the employee, employer or other party, and are not to be “liberally construed in order to fulfill any beneficent purposes.” The new interpretations will apply regardless of any judicial decisions to the contrary. Further, the stated main purposes of these laws now are to pay benefits to workers who suffer “legitimat[e]” work-related injuries and “to encourage the return to work of the worker.” The changes on their face make the workers’ compensation law at least neutral rather than favoring the employee.
This is a major redirection for the interpretation and application of workers’ compensation laws, which previously in Mississippi, as in most states, have been construed for the benefit of the employee over the employer. The rationale was that the employee gave up the right to sue his or her employer in tort for on-the-job injuries in order to receive medical and wage replacement compensation based on the type of injury without having to prove fault of the employer. At the same time, because it was a work-injury compensation system, the laws were applied to the benefit of the employee, not the employer.
Critics have said these changes will result in fewer awards of compensation in favor of the employee. That remains to be seen, but in close cases, it is likely the employee no longer will be given the benefit of the doubt.
Additionally, when workers have preexisting conditions that materially contribute to a work-related injury, the compensation for the current injury is apportioned so that some reduction is applied because of the previous condition. Now, those preexisting conditions no longer will have to be occupationally disabling in order to be subject to apportionment. This means that a worker could have a previous condition that does not necessarily limit the worker’s ability to do a certain job. If that condition materially contributes to a work-related injury, under the amendments recently passed by the Legislature and signed by Governor Phil Bryant, the compensation award for the current condition will be subject to reduction for the previous condition.
Another change is involves drug or alcohol use. Starting July 1, 2012, employers can require drug and alcohol testing when an injury occurs. Further, no workers’ compensation will be paid when the legal cause of the injury is the use of illegal drugs or alcohol, or even the use of lawfully prescribed drugs that are being taken contrary to the prescription’s instructions or the label or warnings.
A clarification sought by businesses concerns the selection of physicians used by employees for their injuries. Before the amendments, the employee had the right to choose a physician and did not have to accept as his or her own physician the one to whom the employer referred the employee unless the acceptance was in writing. Employers complained that certain physicians were unreasonably employee-friendly and employees never agreed to accept employers’ physician choices even though the employer-referred physician treated the employee. Now, the written acceptance still applies, but starting July 1, if the employee gets treatment for the injury in question by a particular physician for “six months or longer” or has surgery for the condition, then the physician providing the treatment or conducting the surgery is “deemed the employee’s selection.”
The final change involves fees for employee/claimants’ attorneys. Recovery of such fees is now clearly prohibited based on benefits that are voluntarily paid to an injured employee for temporary or permanent disability. This should clarify that attorneys’ fees are only payable for the successful resolution of a contested claim or the settlement of a claim.
Other changes to the workers’ compensation laws also go into effect July 1, 2012. Readers may view the entire set of changes at http://billstatus.ls.state.ms.us (section 71-3-1; SB2576).