Bill Text: MS HB518 | 2012 | Regular Session | Introduced
Bill Title: Worker's Compensation Commission; revise composition and jurisdiction of.
Spectrum: Bipartisan Bill
Status: (Failed) 2012-03-06 - Died In Committee [HB518 Detail]
Download: Mississippi-2012-HB518-Introduced.html
MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Insurance; Judiciary A
By: Representatives Rogers (61st), Clarke
House Bill 518
AN ACT TO AMEND SECTION 71-3-47, MISSISSIPPI CODE OF 1972, TO CHANGE THE JURISDICTION OF THE COMMISSION TO AN APPELLATE BODY WITH RESPONSIBILITY FOR REVIEWING APPEALS FROM THE ADMINISTRATIVE LAW JUDGES ON THE RECORD; TO AMEND SECTION 71-3-85, MISSISSIPPI CODE OF 1972, TO CHANGE THE COMPOSITION OF THE WORKERS' COMPENSATION COMMISSION; TO AMEND SECTIONS 71-3-49 THROUGH 71-3-63, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. 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 commission, the text of which shall be published and be readily available to interested parties.
Administrative law judges of the commission shall have full power and authority to determine all questions relating to the payment of claims for compensation. Administrative law judges shall make or cause to be made such investigation as they deem necessary and, upon application of either party or upon its own initiative, shall order a hearing, shall make or deny an award, and shall file the same in its office.
* * * Upon the conclusion of any such hearing, the administrative law judge shall make or deny an award, and file the decision in the office of the commission. Immediately after such filing, a notice of decision shall be sent to all interested parties. This decision shall be final unless within twenty (20) days a request or petition for review by the full commission is filed.
The commission shall sit as an appellate body only and shall review the findings and conclusions of the administrative law judges based on the record made at the hearing. The commission shall not have the authority to overturn a finding of fact of an administrative law judge unless it is clearly erroneous.
SECTION 2. Section 71-3-85, Mississippi Code of 1972, is amended as follows:
71-3-85. (1) From and after July 1, 2012, the terms of all members of the Mississippi Workers' Compensation Commission shall be vacated. The commission shall be reconstituted as provided for in this subsection. There shall be three (3) commissioners appointed by the Governor with the advice and consent of the Senate. One (1) commissioner shall be an attorney, with five (5) years of experience in the practice of law. One (1) member shall be an attorney with at least five (5) years of experience in representing Workers' Compensation Law claimants. One (1) commissioner shall be an attorney with at least five (5) years of experience in representing carriers or employers who are covered by this chapter. The initial term of the employer/carrier representative shall be for two (2) years, the initial term for the claimant's representative shall be for four (4) years, and the initial term for the attorney member shall be for six (6) years. Following the initial terms, all commissioners shall serve for a term of six (6) years. The Governor shall designate the chairman of the commission, whose term of chairman shall run concurrently with his appointment as a commissioner.
The chairman shall be the administrative head of the commission and shall have the final authority in all matters relating to assignment of cases for hearing and trial and the administrative work of the commission and its employees, except in the promulgation of rules and regulations wherein the commission shall act as a body, and in the trial and determination of cases as otherwise provided.
Upon the expiration of the term of a commissioner, he shall continue to serve until his successor has been appointed. Because cumulative experience is conspicuously essential to the proper administration of a Workers' Compensation Law, it is declared to be in the public interest to continue Workers' Compensation Commissioners in office as long as efficiency is demonstrated. A commissioner may be removed for cause prior to the expiration of his term, but shall be furnished a written copy of the charges against him and shall be accorded a public hearing.
Each member of the commission and each administrative law judge shall receive an annual salary fixed by the Legislature.
(2) A vacancy in the commission, if there remain two (2) members of it, shall not impair the authority of such two (2) members to act. In case of illness or continued absence for other reasons, the same authority of such two (2) members shall apply.
(3) The commission and its 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 commission and its 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. The commission shall not exercise any powers associated with the investigation or hearing of any claim but shall, when carrying out adjudicative functions, perform as an appellate body with powers set out by this chapter.
(4) The office of the commission 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 commission 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 commission shall adopt detailed rules and regulations for implementing the purposes of this chapter at hearings attended by the main parties interested. 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 commission 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 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 commission the amount of the award as security for its 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 be 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 commission in cases in which an administrative law judge's decision has been appealed shall be conclusive and binding unless either party to the controversy shall, within thirty (30) days from the date of its filing in the office of the commission and notification to the parties, appeal therefrom to the Supreme Court.
Such appeal may be taken by filing notice of appeal with the commission, whereupon the commission shall under its 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 commission. 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 commission for enforcement. If prejudicial error be found, the same shall be reversed and the Supreme Court shall enter such judgment or award as the commission should have entered. An appeal from the commission 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 commission 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 its 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 and appeals before the commission shall be open to the public and shall be stenographically reported or recorded and transcribed. The commission 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 commission shall regulate, by rules published 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 commission, 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, or on appeal, the full commission determines that proceedings in respect to a claim have been instituted, continued or delayed, including by way of appeal to the commission, without reasonable ground, the administrative law judge, or on appeal, the full commission 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 commission 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 commission. Any such civil penalty levied and collected by the commission 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 commission.
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 their 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 commission 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 the commission on appeal, or any court, unless approved by the commission or the court. Any claim so approved shall, in the manner and to the extent fixed by the commission 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 commission 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 administrative law judge or the commission, on appeal, 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 or the commission, on appeal, insofar as the qualifications of those practicing before the administrative law judge or the commission, on appeal, 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 or the commission, on appeal, 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 commission 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 commission 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. This act shall take effect and be in force from and after July 1, 2012.
