The State of the States

Regulatory Review

A round-up of nationwide regulatory changes affecting the workers' compensation industry.
By: | January 19, 2015


Chronic pain medical treatment guidelines

The Division of Workers’ Compensation proposed amendments to the chronic pain medical treatment guidelines. The proposed guidelines provide a set of best practices for considering a multidisciplinary approach to the management of chronic pain issuing from work-related injuries. The guidelines consist of an introduction and specific recommendations on interventions and treatments for chronic pain in addition to extensive bibliography and reference summaries. Specific guidance on opioid use is not contained in the chronic pain medical treatment guidelines but is provided in a separate medical treatment utilization schedule chapter.




The Division of Workers’ Compensation proposed amendments to rules regarding penalties. A penalty calculation worksheet was revised to provide the premium credit for the initial payment of premium made to secure coverage against an assessed penalty and to adjust the penalty look back period and the penalty multiplier to conform to statutory changes. The amendment changed the time frame to impute the employer’s payroll in the absence of business records from 20 to 28 days after receipt of the department’s request to produce records and changed the factor to calculate employee payroll from 1.5 to two times the state average weekly wage. Also, the time frame for the employer to provide additional records was revised to 20 business days after the service of the first amended order of penalty assessment.


Medical fee schedule

The Workers’ Compensation Court proposed amendments to the schedules of fees for medical, surgical, and hospital services. Effective Jan. 1, 2016, the schedule must include the Medicare resource-based relative value scale applicable to Nebraska. The schedule must include the current procedural terminology codes and the relative value units for each CPT code. The schedule will be adjusted annually to incorporate the CPT codes and relative value units in the then current Centers for Medicare and Medicaid Services tables. The rules also set the conversion factors and service categories of the schedule for the 2016 calendar year. Services subject to the medical fee schedule must be reimbursed at the lower of the fee schedule amount or the provider’s billed charge. The fee schedule does not apply to costs and expenses incurred by or on behalf of any party for the purpose of proving or disproving a contested claim except that X-rays, laboratory services, and other diagnostic tests provided in connection with a medical-legal evaluation are subject to the schedule.


Safety requirements

The Bureau of Workers’ Compensation proposed amendments to rules regarding specific safety requirements for workshops and factories. The rules state that hoisting and haulage equipment must not be loaded in excess of the recommended safe working load as prescribed by the manufacturer in identification markings. When, upon examination, evidence reveals a pole to be unsafe for climbing, workers are not required to climb such pole beyond the point where the unsafe condition begins until the pole has been substantially reinforced. Regarding vehicle-mounted elevating and rotating work platforms, the rules state that the employer must provide a vehicle that will assure a stable support for the aerial device. Regarding helicopters, the rules provide requirements for slings and tag lines, cargo hooks, personal protective equipment, housekeeping, weight limitations, signal systems, communications, and fires.


Preexisting conditions

The Workers’ Compensation Division proposed changes to rules regarding the recognition of preexisting conditions and the effects of a compensable injury versus accepted conditions. The rules reflect that a contributing cause to impairment must be a statutorily recognized preexisting condition to qualify for apportionment. In injury claims, to be recognized as a preexisting condition, a condition must be arthritis or an arthritic condition or diagnosed or treated prior to the compensable injury. In an occupational disease claim, to be recognized as a preexisting condition, a condition must precede the onset of the claimed occupational disease. The division also proposed to amend rules to distinguish definitions and actions that are relevant to compensable injuries from those definitions and actions that are relevant to accepted conditions.

Electronic data interchange

The Workers’ Compensation Division accepted changes to rules regarding electronic data interchange. The purpose of the rules is to require workers’ compensation proof of coverage reporting by EDI. The rules provide general filing information. Transaction rejected acknowledgements will be generated for transactions with errors. Rejected transactions are not considered filed and do not satisfy proof of coverage requirements until they are corrected, resubmitted, and accepted by the division. An insurer that wants to self-report proof of coverage must report through an approved vendor until the insurer completes all of the testing requirements and receives approval from the director to self-report. The rules go into effect on April 1.


Pension discount rates


The Department of Labor and Industries proposed amendments to the pension discount rate and mortality tables. The department explained that the tables need to be updated for life expectancy and gender. The department has worked with the Workers’ Compensation Advisory Committee to develop a plan that would reduce the pension discount rate from the current 6.5 percent to 6.4 percent and would continue to adjust annually through 2022 until it reaches 4.5 percent.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

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The R&I Editorial Team can be reached at [email protected]