Minnesota Department of Labor and Industry

August 2004

CONTENTS
2 3 3 4 5 Electronic data interchange: faster, cheaper and more accurate Submitting retraining plans so all parties benefit Coming soon — advanced-level Compliance Services training Results of 2004 Special Compensation Fund assessment Workers' compensation primary liability determination

TABLES
13 Number of medical-issue complaints by type of complainant, 2000-2003 14 Complaint cases closed Jan. 1, 2002, through Dec. 31, 2003 21 Statewide average weekly wage 22 Compensation rates as of Oct. 1, 2004 23 Number and incidence rate of musculoskeletal disorders in Minnesota involving days away from work 24 WMSDs in the United States, Minnesota and neighboring states, private employers, 2002

12 FAQs: primary liability determination 13 DLI action on medical-issue complaints 19 Request for comments: possible amendments to rules 20 Free publications available online 21 New benefit and provider fees levels effective October 2004 23 Ergonomics disorders: 40 percent of all Minnesota days-away-from-work cases D-1 Court decisions: April through June 2004

Work comp primary liability determination

DLI action on medical-issue complaints

Court decisions: April through June 2004

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D-1

Electronic data interchange:
faster, cheaper and more accurate
By Cindy Valentine, Chief Information Officer Information Technology Services Electronic data interchange (EDI) is a way of transmitting data electronically between two entities or trading partners. At the Department of Labor and Industry (DLI), it means the receipt of first report of injury (FROI) data from seven insurers. An insurance company can transmit a stream of data containing information about at least one injury, and up to many injuries, to an electronic mailbox. DLI automatically retrieves files from the mailbox two times each business day (7 a.m. and 4:30 p.m.) and the data is transmitted directly to the workers’ compensation database. DLI received about 15 percent of the total FROI data submitted in 2003 via EDI. Data received via EDI is generally more accurate than data received on a paper form. The programs that transmit the data to and from the mailbox contain editing programs that catch any serious or obvious errors. Insurers can find out quickly if their FROI has been received at the department; they receive an acknowledgement electronically from DLI when it has been accepted. Finally, it costs the department about 75 percent less to process an EDI FROI than it costs to process a paper FROI. vision. Staff members in DLI's Information Technology Services (ITS) unit have been working on ways to increase the amount of FROI data received via EDI and to enhance the DLI technical environment to enable more of the work to be done electronically. ITS staff members have been planning and implementing technical solutions, including adding a secure FTP server and an ANSI translator, to the ways the department accepts data. The department hopes to implement these technical enhancements by March 2005. DLI currently employs IAIABC Release 1 for receipt of FROI data. Along with increasing the number of technical solutions available for current and potential trading partners, DLI staff members in ITS and the Workers’ Compensation Division are reviewing data elements and programs to plan migration to either IAIABC Release 1.2 or, ultimately, Release 3. Both releases provide for more and larger data fields that may address some concerns potential trading partners have. It would also accommodate subsequent reporting, following submission of the FROI. This would allow trading partners to send additional data electronically. No firm dates have been set for beginning this phase of the EDI expansion efforts; however, an internal review has been completed.

EDI, as well as the Web-based FROI form, has set the stage for a streamlined, customer-focused, electronic environment at DLI. The future holds even more electronic business-processing, including expanding EDI to more customers and forms, and adding additional Web applications. Doing business with customers electronically is DLI's goal is to offer customers faster, cheaper a centerpiece of Governor Pawlenty’s technology and more accurate ways of doing business.
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Submitting retraining plans so all parties benefit
By Ed Spitler, Rehabilitation Specialist Compliance Services

Retraining is often an important part of a rehabilitation plan focused on helping an injured worker return to suitable gainful employment. During the first six months of 2004, 37 retraining plans were submitted by qualified rehabilitation consultants (QRCs) to the Department of Labor and Industry. As of this date: • Twelve training plans were approved, with all parties in agreement or after a Decision and Order or Findings and Order approved the retraining plan.

Coming soon
The Department of Labor and Industry's Compliance Services unit is finishing work on advanced-level training materials regarding permanent partial disability (PPD) payment and the PPD schedules. Compliance Services hopes to offer the half-day training sessions in the fall. Check the DLI Web site for more information: www.doli.state.mn.us/wctrain.html.

• Four retraining plans required no action because settlements were reached. • Fourteen of the plans are in dispute and have been or will be scheduled for a conference. • Seven of the plans are awaiting approval by the insurer. One obstacle when approving or denying retraining plans arises when plans are submitted without all the signatures and with no indication of whether all parties are in agreement. If the parties are in agreement, all designated parties should sign the plan before it is submitted for approval. Ideally, the plan should be signed by the QRC and employee before it is sent to the insurer. Failing that, the R-14 form can be sent in twice, once with the employee’s signature and once with the QRC’s signature. Please do not include any information that was previously submitted; we don’t want two sets of everything in the system. If the parties disagree, a Rehabilitation Request for Assistance form needs to be filed with the retraining plan and attachments unless a claim petition or rehabilitation request has already been filed by another party. We realize retraining plans take a lot of hard work and effort on your part. It’s great to see you taking all rehabilitation services into account when other options aren’t working.
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By John Kufus, Accounting Officer Financial Services

Results of 2004 Special Compensation Fund assessment
The Special Compensation Fund (SCF) assessment funds Minnesota's workers' compensation programs. Most of the assessment dollars go to funding the supplementary and second-injury benefit programs. The assessment also pays the operating expenses of the Workers' Compensation and OSHA divisions of the Department of Labor and Industry, the Workers' Compensation Court of Appeals and portions of the Department of Commerce and the Office of Administrative Hearings. As a result of legislation by the 2002 Minnesota Legislature, the assessment process has changed. Companies are no longer required to report on a semi-annual basis. The reporting is now done on an annual basis and the reports are due by April 1 of each year. The Special Compensation Fund assessment is now directly invoiced by the Minnesota Department of Labor and Industry. The first half of the assessment is due Aug. 1 of that year. The second billing is due Feb. 1 of the following year. The estimated state fiscal-year 2005 funding requirement for SCF was determined to be $104 million. The liability was divided between the insurers and self-insurers by the ratio of their 2003 indemnity payments to the total indemnity reported by both groups.
2003 indemnity Insurers Self-insurers Total $309,671,598 $ 95,310,832 $404,982,430 Ratio 76.47% 23.53% 100.00% Estimated liabilities $ 79,524,000 $ 24,476,000 $104,000,000 $720,747,228 DSR pure premium $720,747,228

Insurer premium surcharge rate

The insurer premium surcharge rate applied for the purpose of determining the Special Compensation Fund assessment was 11.0335 percent. The rate was determined by dividing the insurer portion of the SCF state fiscal-year 2005 liability ($79,524,000) by the 2003 designated statistical reporting pure premium reported by all insurers to the Minnesota Workers' Compensation Insurers Association ($720,747,228).
Self-insured assessment rate

The imputed self-insured assessment rate was 25.6802 percent. It was determined by dividing the self-insured portion of the Special Compensation Fund state fiscal-year 2005 liability ($24,476,000) by the total 2003 indemnity reported by the self-insured employers ($95,310,832). Call Jim Feckey, SCF director, at (651) 284-5455, if you need further information.

Workers' compensation primary liability determination
By Beth Hargarten, Assistant Commissioner Workers' Compensation Division Editor's note: This information contains portions of an article previously published in COMPACT (August 2002) and written by former Assistant Commissioner Gary Hall. The information is intended to give insurers and selfinsured employers some direction regarding the information the Department of Labor and Industry (DLI) looks for when evaluating the sufficiency and validity of denials of primary liability. DLI believes this article may be particularly helpful for those insurers that are working with a variety of different workers’ compensation laws. The examples cited are not rules and any denials filed that are similar to the examples would continue to be evaluated on a case-by-case basis. However, the examples are intended to give our stakeholders a better sense of the types of denials we receive and the issues we see with them. DLI's goal is to improve the quality of denial notices by providing a framework for understanding, evaluating and communicating the underlying basis for a particular denial. Accomplishing this goal will require increased educational efforts, increased compliance efforts and, most of all, cooperation with and a commitment from those stakeholders that file denials with the agency. This information sheet can be used as both a reference tool and a training or discussion resource. What injuries are compensable?

Injuries or occupational diseases that arise out of and in the course of employment are compensable under the Minnesota Workers’ Compensation Act. For an injury to be compensable, it is sufficient that the employment is a substantial contributing factor to the condition or to an aggravation or acceleration of a pre-existing condition. It is not necessary that the employment be the only cause of the condition. The Workers’ Compensation Court of Appeals indicated in Vanda v. Minnesota Mining & Manufacturing: The long-standing rule, applied by this court in numerous cases, is that when the usual tasks ordinary to an employee’s work substantially aggravate, accelerate or combine with a pre-existing disease or latent condition to produce a disability, the whole disability is compensable, no apportionment being made on the basis of relative causation of the preexisting condition and the work activities. There are four types of compensable injuries. 1. Specific injuries include those injuries that arise out of a specific event.
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• COMPACT • August 2004

CA/CS: Interaction with DLI

2. Cumulative trauma injuries arise out of and in the course of job duties that cause cumulative repetitive minute trauma. An example of this would be carpal tunnel syndrome. 3. Occupational injuries arise out of and in the course of employment and are peculiar to the occupation in which the employee is engaged and due to causes in excess of the hazards ordinary of employment. Asbestosis could be considered an occupational injury. 4. Consequential injuries are subsequent injuries that are a direct and natural consequence of a previous compensable injury. Hip or back problems as a result of an altered gait caused by leg injury could be considered a consequential injury.

DLI's Customer Assistance (CA) unit may contact the author of a denial concerning its content, after receiving a call from a claimant concerning the denial. DLI’s dispute prevention and resolution specialists will try to clarify the issues surrounding the denial, particularly those issues that could lead to the conclusion that the denial is nonspecific or frivolous. The specialists may suggest the use of mediation as a method for resolving the problem; mediation is a service DLI provides. Contacts from DLI's Compliance Services (CS) unit may come as a result of a review of claims files, customer contacts and penalty referrals. The compliance officers often seek information to determine whether a penalty is appropriate.

When are insurers to make primary liability determinations?

Minnesota Statutes §176.221, Subd. 1, provides: “Within 14 days of notice to or knowledge by the employer of an injury compensable under this chapter the payment of temporary total compensation shall commence.” If liability is denied, the insurer is required to file a Notice of Insurer’s Primary Liability Determination (NOPLD) form with the department and serve a copy on the employee, indicating the basis for its denial of liability. If there is a basis to deny, denials must be served on the employee and filed with the department within 14 days of notice to the employer or knowledge by the employer of a claimed injury that is required to be reported to the department. The same statute also states that if the insurer has commenced payment of compensation, but determines within 60 days of notice to or knowledge by the employer of the injured worker that the disability is not the result of a work-related injury, payment of compensation may be discontinued solely by filing of a NOPLD form giving the reasons and facts for the denial within 60 days of notice or knowledge. This provides an opportunity for an insurer that completes an investigation after the initiation of payment of benefits to submit another NOPLD form if facts are discovered that provide a basis for denial of the claim.

Denials of liability

An NOPLD form denying the claim as not compensable must cite the legal basis and state, in detail, the facts forming the basis for the denial. Denials lacking a legal and factual basis are subject to penalties under M.S. Chapter 176. Specific reasons must be provided that explain why the claimed injury was determined not to be within the scope and course of employment. Any legal and factual basis for the denial must also be clear, so the injured worker and the department can understand the reason without further inquiry. Denials lacking a specific reason are subject to penalties under M.S. Chapter 176. If a claim appears to be questionable, but the insurer does not have a valid reason to deny the claim, the statute allows the insurer to accept liability and begin any appropriate payments, and then deny the claim within the 60 days noted above by filing an NOPLD form if a valid reason for denial is obtained. To discontinue payment and deny the claim after the 60 days, the insurer must file a Notice of Intention to Discontinue Workers' Compensation Benefits (NOID) form.
What are nonspecific or frivolous denials and prohibited practices related to denials?

When the department reviews denials of primary liability to determine whether they conform with the law, it takes into consideration the type of injury and facts surrounding the reporting of the injury. The following are some of the statements the department sees on denials, along with the reason why that statement – by itself – is not a statement of fact or does not provide a specific legal basis for a denial. • “The injury did not arise out of and in the course of
employment.”

Minnesota Rules, part 5220.2570, Subp.2 E, indicates “a denial that states only that the injury did not arise out of and in the course of employment ... is not specific within the meaning of this item.” • “The injury was not caused, aggravated or accelerated
by work activities.”

This does not provide a legal and factual basis for the denial. • “We respectfully deny the employee is entitled to work
comp benefits.”

This does not provide facts to support that the work injury did not occur.
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• COMPACT • August 2004

• “The employee was not credible.” This does not provide a factual basis for the doubts about the employee’s credibility. • “In spite of repeated calls, the employee has not been
available.”

This does not provide facts to support that the work injury did not occur. • “The injury was idiopathic.” This statement is an acknowledgement an injury occurred, but does not indicate why it was determined to be not work-related. Also, use easily understandable terms. • “There was no witness to the injury.” This statement does not provide a factual and legal basis that the injury did not arise out of and in the course of employment. It may have been a fact, but it does not provide a legal basis. There is no requirement in the workers’ compensation law that an injury be witnessed; it may well be compensable although no other person witnessed it. • “We have no medical information that relates the injury
to the employment” or “We do not have any medical reports that support the claim.”

Minn. Rules, Part 5220.2570, subp 2E, indicates a denial that states only that the injury was denied for lack of a medical report is not specific within the meaning of this item. If the denial is based on a medical reason, the medical report that provides the basis for the denial should be attached. A medical report is not always a necessity in order to accept liability. If a medical report is necessary to determine compensability but is not available, state on the denial why a medical report is needed, who was contacted about the report, when this request was made, etc. If a medical report is not necessary, the specific reasons for the denial need to be explained. If the medical report is available, it needs to be sent with the denial.
Other invalid denial statements

Sometimes, denials indicate an investigation is not complete and is continuing. Even though the investigation is continuing, a denial that includes this language still must have a specific and valid legal and factual basis for denying the claim. Examples of statements that need additional specific and valid legal and factual bases include: • “This investigation continues.”

• “We are in the process of a full investigation." • “This claim is under investigation.” • “Conditional denial: We have not obtained the medical records.” • “We will need to review the medical reports.” • “An authorization to obtain medical records for a pre-existing condition has been sent.” • “This claim is disputed until the results of an IME can be reviewed.” Denials are sometimes based on facts that – by themselves – do not provide a legal basis for a denial. Examples of statements that do not provide a legal basis for the denial include: • “The employee had a pre-existing condition.” • “The employee did not comply with the company’s policy of reporting injuries.” • “The employee did not go directly to a doctor.” • “The injury was not reported to the employer until after the medical treatment was sought by the claimant.” • “The employee did not seek treatment for two weeks and was able to continue working." • “The employee did not miss time from work until weeks after the injury.” • “The employee has been terminated by the employer.” • “The employee refused light-duty work.” • “The employee is getting disability benefits from the employer.” • “All medical bills have been submitted to the health insurer.” • “There is no medical documentation that the employee should be off work due to the work injury.”

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What are the penalties related to denials?

The Department of Labor and Industry can issue penalties for prohibited practices and late, nonspecific and frivolous denials. The department’s review of denied claims takes into consideration the type of injury and facts surrounding the reporting of the injury. There are various penalties that apply to denials of primary liability; there may be multiple penalties related to one denial. The statutory provisions and rules that include penalties related to denials include the following:
Nonspecific denials

M.S. §176.221, Subd. 1 – A notice of denial of liability must state in detail the facts forming the basis for the denial and specific reasons explaining why the claimed injury or occupational disease was determined not to be within the scope and course of employment and shall include the name and telephone number of the person making this determination. M.S. §176.84, Subd. 1 – Specificity required – Notices of discontinuance and denials of liability shall be sufficiently specific to convey clearly, without further inquiry, the basis upon which the party issuing the notice or statement is acting. If the commissioner or compensation judge determines that a notice or statement is not sufficiently specific to meet the standard under this section, the notice or statement may be rejected as unacceptable and the party issuing it shall be informed of this. The rejected notice or statement may be amended to meet the requirement of this section or a new one may be filed. Minn. Rules, Part 5220.2570, Subp.2, Denial of liability form – A denial of primary liability under M.S. §176.221, subdivision 1, must be fully completed and on a form prescribed by the commissioner, containing substantially the following: • E. a specific reason for the denial, which must be in language easily readable and understandable to a person of average intelligence and education, and a clear statement of the facts forming the basis for the denial. A denial that states only that the injury did not arise out of and in the course and scope of employment or that the injury was denied for lack of a medical report, for example, is not specific within the meaning of this item;

• F. a copy of a medical report or summary from any health care provider contact that forms the basis for the denial. Minn. Rules, Part 5220.2570, Subp. 6, Service – The employer or insurer shall serve on the employee the form or letter under subparts 1 to 5 with any relevant medical or other reports attached and file a copy with the division.
Frivolous denials

M.S. §176.225, subd. 1, Grounds – Upon reasonable notice and hearing or opportunity to be heard, the commissioner, a compensation judge, or upon appeal, the court of appeals or the Supreme Court shall award compensation, in addition to the total amount of compensation award, of up to 30 percent of that total amount where an employer or insurer has: • (e) frivolously denied a claim. (For the purpose of this section, “frivolously” means without a good faith investigation of the facts or on a basis that is clearly contrary to fact or law.) Minn. Rules, part 5220.2570, Subp. 10, Penalty; Frivolous denial – A. A frivolous denial under M.S. §176.225, subdivision 1, clause (a) or (e), includes one that: (1) does not state facts indicating that an investigation has been completed or that a good faith effort to investigate has been attempted; or (2) states a basis which is a clearly inaccurate statement of fact or the applicable law.
Prohibited practices, denials

M.S. §176.194, subd. 3, Prohibited conduct – The following conduct is prohibited: (4) filing a denial of liability for workers’ compensation benefits without conducting an investigation. See the frequently asked questions about primary liability determination on the next page.
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FAQs: primary liability determination A. Q.
It’s the 14th day, I just got the First Report of Injury form and I haven’t been able to contact anyone. It looks like there is lost time beyond the waiting period. What should I do? You can choose to either commence payment and then deny liability later if necessary, by filing another NOPLD form within 60 days, or you can deny liability making sure the reasons are legal and factual, as well as specific. If your determination is not made within the 14-day period, you run the risk of being penalized for a late payment or late denial of benefits.

A denial must be based on legal and factual reasons and must also be specific. Basing a denial only on your “feeling” alone would not be appropriate. It’s now the 14th day. I’ve begun the investigation and I don’t have all the answers to my questions. What are the options? You can choose to either commence payment and then deny liability later, if necessary, by filing another NOPLD form within 60 days or you can deny liability making sure the reasons are legal and factual, as well as specific. If your determination is not made within the 14-day period, you run the risk of being penalized for a late payment or late denial of benefits. I denied a claim that had only a small amount of lost time and medical bills. New information has become available that makes me question my earlier decision, but isn’t persuasive enough for me to change my mind. The injured worker has mentioned getting an attorney. What are my options?

A.

Q.

A.

You must still conduct an investigation of the claim. Any denial must be based on legal and factual reasons. I have no medical reports and haven’t been able to speak to the health care provider. Can I deny the claim just because I don’t have the reports? Decide if it is necessary to have the medical reports to determine liability. Why are the reports necessary? The law allows you to obtain relevant health care provider reports within seven days. You may contact DLI for help in obtaining medical records. If you choose to deny, be specific in your reasons to deny, explain why the reports are necessary and what health care provider contact attempts have been made. For another option, see the answer to the first question.

Q. A. Q.

The employer said to deny the claim. Is that all I need to do?

Q.

A.

You can continue to investigate the claim to get additional information that will help with your decision making. You can wait to see if a claim petition is filed and deal with the expense of defending the denial. Mediation is also an option where the parties can work toward a mutual resolution of the claim. DLI's Customer Assistance unit offers mediation services. For more information, call (651) 284-5032 or 1-800-342-5354. More information is also available online at www.doli.state.mn.us/irdspres.html.

A.

Q.
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Despite all the information I have, I still feel the claim should be denied. Can I do this?

• COMPACT • August 2004

DLI action on medical-issue complaints
By Sandra Keogh, Medical Compliance Specialist Compliance Services

The Minnesota Department of Labor and Industry (DLI) enforces compliance with workers’ compensation laws and rules by health care providers (Minnesota Statutes §176.103; Minnesota Rules part 5221.8900) and certified managed care organizations (M.S. §176.1351; Minn. Rules parts 5218.0800 and 5218.0900). The disciplinary process is delineated in these laws and rules. The department also has authority to investigate complaints of noncompliance with workers’ compensation laws and rules under M.S. §176.251. The department investigates complaints about insurers’ or employers’ noncompliance concerning medical issues. Anyone may file a complaint with DLI about a health care provider, certified managed care organization, employer or insurer. The number of complaints received from various types of complainants is detailed in Table 1.
Table 1. Number of medical-issue complaints by type of complainant, 2000-2003 Year Employer or insurer 25 36 34 12 Health care provider 3 5 5 4 Employee or attorney 8 3 9 6 Certified managed care plan* 0 2 0 0 DLI Other** Total

2000 2001 2002 2003

2 2 2 1

0 0 1 0

38 48 50 24

*A certified managed care organization is an entity that has a contract with an insurer to provide certified managed care plan coverage to an employer's employees under M.S. §176.1351. **Other entities may include a qualified rehabilitation consultant, or a preferred provider network or case management vendor that is not a managed care plan certified under M.S. §176.1351.

The number of complaints received and investigated by a medical compliance specialist gradually increased from 1996 to 2002. DLI began documenting complaints alleging a violation of a workers’ compensation medical rule in 1996. The number of complaints submitted by insurers and selfinsured employers increased more than other types, possibly because insurers are more aware of this resource within DLI. The most frequent complaint from insurers and self-insured employers was that a health care provider did not respond to their request for a permanent partial disability (PPD) rating. The number of recorded complaints about medical issues dropped by half from 2002 to 2003. A likely reason for this drop in complaints is that DLI staff reductions necessitated procedural changes in how complaints are processed. In early 2003, the process for handling an insurer’s request for help in obtaining a PPD rating was decentralized. Prior to 2003, these insurer letters were processed
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and tracked by a medical compliance specialist as alleged violations of Minn. Rules part 5221.0410. Now these insurer letters are distributed to the auditors within Compliance Services. The auditors assist the insurer in obtaining a PPD rating; however, the identity of the provider and the outcome are not centrally recorded or tracked. Thus, the 2003 decrease in the number of complaints from insurers about noncompliant health care providers is likely due to changes in the department’s recordkeeping.
Complaint outcomes

An individual complaint may allege several violations of workers’ compensation statutes or rules. During the course of an investigation, additional noncompliance issues by the subject of the complaint are sometimes identified. However, only the most serious outcome is recorded for each complaint. All information about a complaint is private unless disciplinary action, such as a hearing or penalty, occurs. This report contains summary information about medical complaints closed by a medical compliance specialist between Jan. 1, 2002, and Dec. 31, 2003.
Table 2. Complaint cases closed, Jan. 1, 2002, through Dec. 31, 2003 Subject of complaint Health care provider CMCO* Employer/insurer Other** Total Closed as unsubstantiated or dismissed 32 4 8 0 44 Closed with instruction 31 5 1 1 38 Closed with discipline 5 0 0 0 5 Total closed

68 9 9 1 87

*A certified managed care organization (CMCO) is an entity that has a contract with an insurer to provide certified managed care plan coverage to an employer's employees under M.S. §176.1351 **Other entities may include a qualified rehabilitation consultant, or a preferred provider network or case management vendor that is not a managed care plan certified under M.S. §176.1351.

Forty-four complaints closed in the two-year period (2002 and 2003) were dismissed. A complaint may be dismissed if the complainant does not provide information necessary to investigate the complaint. A complaint also may be dismissed if the alleged violation or noncompliance is not supported by information obtained through investigation. Finally, the department may dismiss a complaint if there is litigation on related issues or the department does not have jurisdiction to proceed. In some cases, a violation cannot be substantiated or discipline is not warranted, but the subject may not have acted optimally. A letter of instruction may be sent to the subject of the complaint to identify the issues or actions that contributed to the problem and recommend actions that could reduce the likelihood of similar complaints. A letter of instruction is not a disciplinary outcome. Thirty-eight complaints were closed with a letter of instruction to the subject of the complaint.
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Complaints closed with discipline are those complaints where the investgation supports that a violation or noncompliance with a workers' compensation statute or rule has occurred. Disciplinary actions that the department may take are specified by statute or rules and may include a warning, penalties, a hearing under M.S. Chapter 14 at the Office of Administrative Hearings or a stipulated agreement that often requires behavioral change and payment of a fine. Five complaints were closed with a stipulated agreement. Complaints closed in 2002 and 2003 that resulted in a letter of instruction or discipline, are summarized below.
Closed complaints about health care providers

Complaints about health care providers most frequently involved one of three issues: 1. Failure to respond to a request for a required report from the insurer or employer Minn. Rules part 5221.0410 requires a health care provider to respond to a request for required information on a prescribed form (Health Care Provider Report and Report of Work Ability) within 10 days. The most frequent complaint about health care providers is failure of a health care provider to respond to an insurer’s request for required medical information (usually a permanent partial disability (PPD) rating) on the Health Care Provider Report form. During 2002 and 2003, DLI recorded 33 such requests for assistance from insurers. Outcome: In all recorded cases, the provider submitted the requested PPD and/or maximum medical improvement (MMI) information to the requestor, or to DLI following a written request. Nineteen of the 33 cases were closed with a letter of instruction to the health care provider concerning her or his responsibility to promptly respond to the employer, insurer or department’s request for information on a Health Care Provider Report form. A penalty was not warranted on any of these complaints. 2. Attempting to collect from an employee payment for services related to a condition accepted by a workers’ compensation payer M.S. §176.136, subd. 2, and Minn. Rules part 5221.0500, subp. 3, prohibit a health care provider from attempting to collect payment from an employee or any other source, for charges that exceed the maximum specified in Minn. Rules part 5221.0500, subp. 2. M.S. §176.135, subd. 7, and Minn. Rules part 5221.0700, subp. 2, prohibit a health care provider from attempting to collect payment from an employee before submitting an appropriate record to the insurer. Investigation into collections complaints indicates two factors are predominant: (a) The employee does not inform the health care provider that the condition is work-related;
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(b) Today’s health care provider often uses a complex administrative support system, including central billing, payment and medical records systems. These administrative systems may be in different locations or even different cities or states. The various units may not coordinate their functions to ensure records are sent with a bill or that a request for records to the billing office is forwarded to the medical records department. In two cases, the provider did not properly credit payment to the account for more than a year, because the patient’s account number did not accompany the payment. Outcome: In six complaints, the provider was instructed to develop and implement internal procedures for workers’ compensation claims, including: • bill the workers’ compensation insurer directly; • on the bill, instruct the payer to remit payment with the statement so the appropriate account is identified; • submit an appropriate record with the bill or promptly upon request; • respond promptly to calls and letters concerning billing problems; and • do not automatically channel identified WC claims to a collection agency. 3. Failure to respond to a request for existing medical records M.S. §176.138 provides that release of existing written medical data related to a current claim for workers’ compensation to the employer, insurer, employee or to the Department of Labor and Industry shall not require prior approval of any party to the claim. Health care providers must provide existing written medical data within seven days of a written request. Minn. Rules part 5221.0700, subp. 2, requires providers, except hospitals, to supply an appropriate record with the bill. Hospitals must provide the medical record upon request by the payer. Health care providers have been more reluctant to release medical information since the federal Department of Health and Human Services implemented Standards for Privacy of Individually Identifiable Health Information under the Health Insurance Portability and Accountability Act (HIPAA) in April 2003. Any entity covered by HIPAA regulations may incur significant penalties for violation of the HIPAA privacy rule. HIPAA provides an exception for workers’ compensation: a provider may disclose protected health information as authorized by, and to the extent necessary to comply with, laws relating to workers’ compensation. Some health care providers refused to release requested medical records without the employee’s signature on a valid authorization form. These providers were often unaware of the HIPAA workers’ compensation exception and the relevant Minnesota laws. In other cases, the provider’s medical record unit neglected to ensure the requested record was sent. Outcome: Four complaints were closed with a letter of instruction explaining the Minnesota laws requiring release of medical data related to a current claim for compensation. “Law change: A primer about HIPAA and Minnesota workers’ compensation,” (COMPACT, May 2003) is often sent with the letter of instruction.
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Complaints against health care providers closed with discipline

1. Provider billed for services using an inappropriate billing code Minn. Rules part 5221.0700, subp. (3), requires that a provider assign the correct approved billing code in effect on the date of service using the appropriate provider group designation and the instructions in the fee schedule. Subp. 3, C (5), requires that services provided by a licensed chiropractor must be coded using the procedure codes listed in Minn. Rules part 5221.4060. Three providers were engaged in a business where a physician prescribed treatment and the treatment was provided by a licensed chiropractor. The chiropractor’s services were coded using the physician codes. Under the fee schedule the physician codes were reimbursed at a higher rate than chiropractor codes. The treatment was incurred in 2000, prior to the Minnesota fee-schedule amendment effective Jan. 1, 2001, which changed chiropractor codes to CPT codes. Outcome: A stipulated agreement provided for a $1,000 penalty against each of the three health care providers. 2. Provider billed for services actually provided by someone else and provider did not direct or supervise the services provided Minn. Rules, parts 5221.0700, subp. 2(A)(1), and 5221.0700, subp. 3(C)(1), require direct billing by the provider actually providing the service. The provider arranged for electrodiagnostic testing of an employee with a diagnostic testing company. Under the provider’s contract with the diagnostic testing company the provider rented the equipment and the services of a technician to perform the testing. The provider allowed the technician to change the order to allow testing of additional areas in accordance with the testing company’s protocol. The provider billed the workers’ compensation insurer an amount exceeding the cost for rental of equipment and services of a technician. The testing company billed the insurer separately for interpreting the results of the test. Outcome: There were two separate complaints. In each case the provider entered into a stipulated agreement based on the facts of each case. One provider paid a penalty of $300; the other paid a penalty of $600.
Closed complaints about certified managed care plans

Complaints about certified managed care plans concerned the plan’s medical case management function. The following managed care rules are pertinent to these complaints: M.S. §176.1351, subd. 2, (1), provides a certified managed care plan is required to ensure an employee receives quality medical and health care services that meet uniform treatment standards in a manner that is timely, effective and geographically convenient for the worker. M.S. §176.1351, subd. 2 (6), and Minn. Rules part 5218.0100, subp. 1, K, state that a certified managed care plan must provide aggressive case management for employees, a program of early
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• COMPACT • August 2004

return to work and cooperative efforts by the workers, employer and the managed care plan to promote workplace health and safety consultative and other services. Minn. Rules part 5218.0760, subp. 1, describes the role of a medical case manager as one who must monitor, evaluate and coordinate the delivery of quality, cost-effective medical treatment and other health services needed by an injured employee, and must promote an appropriate, prompt return to work. Medical case managers must facilitate communication among the employee, employer, insurer, health care provider, managed care plan and any assigned qualified rehabilitation consultant to achieve these goals. Employees or their attorneys’ complained that the nurse case manager inappropriately directed the employee’s treatment by restricting employee access to a health care provider or that the nurse case manager inappropriately communicated with the employee or a health care provider. Outcome: Letters instructed the plan to initiate and maintain communication with all parties on any medical or return-to-work issues and to work diligently with the parties to resolve concerns and disputes.
Closed complaints about employers and insurers

1. Employer or insurer directed employee to a designated health care provider M.S. §176.135, subd. 1 (f), provides that an employer may require that treatment and supplies required to be provided by this section be received in whole or in part from a managed care plan certified under section 176.1351, except as otherwise provided by that section. Some insurers have contracted with a network of providers for primary care or specific services, such as diagnostic radiology. The insurer required an injured employee to receive care from one of the network providers. Outcome: A letter of instruction informed the insurer that while it may contract with a network of providers, the insurer must not require employees to receive medical services from the provider network unless the employer is covered by a certified managed care plan.
Conclusion

Investigation of complaints serves three purposes. First, problems in specific claims are identified and the behavior is corrected through instruction or discipline. If the noncompliance is repeated, the department may consider past complaints when similar problems are reported. Second, Compliance Services may identify recurring problems or trends that may be addressed proactively with training to help prevent future problems and complaints. Compliance Services provides training to adjusters and health care providers about medical issues, including communication and billing requirements, the medical fee schedule, treatment parameters and certified managed care. Third, DLI considers issues raised in complaints when reviewing workers’ compensation rules for any necessary amendments. Please direct complaints or questions about the medical complaint program to Sandra Keogh, medical compliance specialist, by phone at (651) 284-5173 or 1-800-342-5354, or by e-mail at sandra.keogh@state.mn.us.
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Request for comments

Possible amendments to rules governing pharmacy services and fees, certified managed care plans
or fill prescriptions for injured workers; workers' compensation certified managed care plans; and health care providers who treat injured workers covered by certified managed care plans.
Statutory authority

Request for comments on possible amendment to rules governing: Pharmacy Services and Fees, Minnesota Rules, part 5221.0700 and 5221.4070; and Certified Managed Care Plans, Minnesota Rules, chapter 5218
Subject of rules

The Minnesota Department of Labor and Industry requests comments on its possible amendment to rules governing pharmacy services and fees. Although amendment of all rules governing pharmacy billing and payment are being considered, the department is specifically considering changing the maximum fees for payment of drugs and supplies prescribed for treatment of workers' compensation injuries in Minnesota Rules part 5221.4070. The department is also considering amendments to the rules governing certified managed care plans under Minnesota Statutes §176.1351. Although all aspects of the certified managed care rules may be considered for amendment, the department is specifically considering the following amendments: eliminating the requirement in Minn. Rules 5218.0600 prohibiting certified managed care plans from negotiating fees with its participating providers; accepting credentialing or approval by established credentialing organizations or other state agencies in lieu of some requirements in the certified managed care rules; clarifying how pharmacies fit into certified managed care plan networks; amending managed care plan reporting and filing requirements; revising the requirements for utilization and peer review; and clarifying application of the employee notice requirements in Minn. Rules part 5218.0250.
Persons affected

Minnesota Statutes §176.136, subdivisions 1(a) and 1b(c), and §176.83, subdivision 4, authorize the commissioner to establish maximum fees for services, articles and supplies used to treat workrelated injuries. Minnesota Statutes §176.1351, subdivision 6 authorizes the commissioner to adopt rules necessary to implement certified managed care plans. Minnesota Statutes §176.83, subdivisions 1 and 15 authorize the commissioner to adopt, amend or repeal rules to implement the workers' compensation law, and to prescribe forms and other reporting procedures to be used by providers and others subject to the workers' compensation law.
Public comment

Interested persons or groups may submit comments or information about these possible rules in writing or orally until further notice is published in the State Register that the department intends to adopt or to withdraw the rules. The department does not contemplate appointing an advisory committee to comment on the possible rules.
Rules drafts

The department has not yet prepared a draft of the possible rule amendments. Drafts of the amendments, when available, will be posted on the department's Web site at www.doli.state.mn.us.
Agency contact person

The rule amendments would likely affect participants in the workers' compensation system, including injured employees; employers; workers' compensation insurers; pharmacies, and hospitals and other health care providers that dispense drugs

Written comments, questions, requests to receive a draft of the rule amendments when they are prepared and requests for more information about these possible rules should be directed to: Kate Berger, Legal Services, Minnesota Department of Labor and Industry, 443 Lafayette Road N., St. Paul, MN 55155. Comments can also be submitted
Comments to page 20

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• COMPACT • August 2004

Comments from page 19

to Berger by phone at (651) 284-5295; by fax at (651) 284-5725; or by e-mail at kate.berger@state.mn.us. TTY users may call the department at (651) 297-4198. Questions about these possible rules can also be directed to Sandra Keogh, Compliance Services, at (651) 284-5173 or at sandra.keogh@state.mn.us.
Alternative format

Upon request, this Request for Comments can be made available in an alternative format, such as large print, Braille or audiotape. To make such a request, contact the agency contact person at the address or telephone number listed above.
Note

Comments received in response to this notice will not necessarily be included in the formal rulemaking record submitted to the administrative law judge when a proceeding to adopt rules is started. The agency is required to submit to the judge only those written comments received in response to the rules after they are proposed. If you submitted comments during the development of the rules and you want to ensure that the Administrative Law Judge reviews the comments, you should resubmit the comments after the rules are formally proposed.

Free publications available online
These publications — and others — are available free on the Department of Labor and Industry Web site. Minnesota Workers’ Compensation System Report 2002 • Report highlights: www.doli.state.mn.us/wccost02.html • Full report: www.doli.state.mn.us/rsreport.html Minnesota Workplace Safety Report, 2002 • Full report: www.doli.state.mn.us/rsreport.html Workers' compensation claims characteristics, 2002 • Brochure: www.doli.state.mn.us/pdf/wc_claimcharacter02.pdf Prompt First Action Report on Workers’ Compensation Claims, 2003 • Full report: www.doli.state.mn.us/pubwkcp.html Collection and Assessment of Fines and Penalties, 2003 • Full report: www.doli.state.mn.us/pubwkcp.html An Employee’s Guide to the Minnesota Workers’ Compensation System, 2000 • Complete guide: www.doli.state.mn.us/guide.html An Employer’s Guide to Employment Law Issues in Minnesota, 2002 • Complete guide: www.deed.state.mn.us/publications/index.htm
(published by the Department of Employment and Economic Development)

Publications are also available in printed versions. To request a copy, contact Customer Assistance by phone at (651) 284-5030, by fax at (651) 296-9634 or by e-mail at dli.brochure@state.mn.us. 20
• COMPACT • August 2004

New benefit and provider fees levels effective October 2004
By Brian Zaidman, Research Analyst Research and Statistics

The statewide average weekly wage (SAWW) effective Oct. 1, 2004, is $740, a 3.06 percent increase over the current SAWW of $718, which has been in effect since Oct. 1, 2003. [See the table on this page.] The levels for minimum and maximum weekly benefit payments are presented in the table on the following page. The statewide annual average wage will change to $38,441 on Jan. 1, 2005. The new SAWW is based on 2003 payroll and employment figures supplied by the Department of Employment and Economic Development and the calculation procedure in Minnesota Statutes §176.011, subd. 20. The increase in the SAWW is the basis for the M.S. §176.645 annual benefit increases. Only injured workers meeting the eligibility requirements of M.S. §176.645 will receive adjusted benefits. Benefit increases for workers injured prior to Oct. 1, 1992, are limited to 6 percent. Benefit increases for workers injured between Oct. 1, 1992, and Sept. 30, 1995, are limited to 4 percent. For workers injured on or after Oct. 1, 1995, the initial annual adjustment is made on the fourth anniversary of the date of injury and is limited to 2 percent. [See COMPACT, February 1999, pages 10-11.] The vocational rehabilitation annual adjustment of hourly fees is limited to the 2 percent maximum increase (Minnesota Rules 5220.1900 subp. 1b, 1c and 1e). On Oct. 1, 2004, the maximum qualified rehabilitation consultant (QRC) hourly fee will increase to $83.77 and the maximum hourly rate for rehabilitation job development and placement services will increase to $64.43. Notices of hourly fee changes must be filed with the DLI commissioner. QRCs and registered rehabilitation vendors can ensure their hourly rates are on file by completing forms R-21 or R-23 (available on the Department of Labor and Industry Web site at www.doli.state.mn.us/ wcforms1.html; scroll to bottom of page). Pursuant to M.S. §176.136, subd. 1a, which provides for annual adjustments of the medical fee schedule
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• COMPACT • August 2004

conversion factor by no more than the change in the statewide average weekly wage, the commissioner is adjusting the conversion factor by 1.5 percent, which is the percent change in the producer price index for offices of physicians (PPI-P) developed by the U.S. Department of Labor, Bureau of Labor Statistics. The conversion factor will increase to $76.31 for services provided on or after Oct. 1, 2004, subject to approval by an administrative law judge. Minnesota Rules, part 5219.0500, subp. 4, provides for adjustment of the maximum fees for independent medical examinations in the same manner as the adjustment of the conversion factor. Therefore, the independent medical examination fees will be increased by 1.5 percent for services provided on or after Oct. 1, 2004, subject to approval by an administrative law judge. An official notice of the medical fee schedule conversion factor and independent medical examination fee increases approved by the administrative law judge will be published in the State Register in September.

Effective Oct. 1 of the indicated year Year Statewide average weekly wage Percentage change from previous year

Statewide average weekly wage

1990 ................ $428 ............... 3.63% 1991 ................ $443 ............... 3.50% 1992 ................ $459 ............... 3.61% 1993 ................ $484 ............... 5.45% 1994 ................ $492 ............... 1.65% 1995 ................ $505 ............... 2.64% 1996 ................ $524 ............... 3.76% 1997 ................ $553 ............... 5.53% 1998 ................ $579 ............... 4.70% 1999 ................ $615 ............... 6.22% 2000 ................ $642 ............... 4.39% 2001 ................ $680 ............... 5.92% 2002 ................ $702 ............... 3.24% 2003 ................ $718 ............... 2.28% 2004 ................ $740 ............... 3.06%

Compensation rates as of Oct. 1, 2004 Statewide average weekly wage (SAWW) = $740 Percentage change in SAWW from previous year = 3.06%

(Apply Minnesota Statutes §176.645 adjustment as necessary based on date of injury.) Minimum under M.S. 176.101, subd. 1(2) Supplementary benefits under M.S. 176.132
(Minnesota Statutes 1994)

Maximum under M.S. 176.101 and 176.111

100% of SAWW

50% of the SAWW or gross wage, whichever is less, but in no case less than 20% of the SAWW
50% 20%

10-01-77.............$197.00 10-01-78.............$209.00 10-01-79.............$226.00 10-01-80.............$244.00 10-01-81.............$267.00 10-01-82.............$290.00 10-01-83.............$313.00 10-01-84.............$329.00 10-01-85.............$342.00 10-01-86.............$360.00 10-01-87.............$376.00 10-01-88.............$391.00 10-01-89.............$413.00 10-01-90.............$428.00 10-01-91.............$443.00

and permanent total minimum under M.S. 176.101, subd. 4 (for injuries 10-1-95 and later)

10-01-92 ........... $481.95 10-01-93 ........... $508.20 10-01-94 ........... $516.60

105% of SAWW

10-01-95 ............ $615.00 10-01-00.............$750.00

Set by Statute

10-01-77.....$ 98.50 (gross wage - $147.75)... $ 39.40 10-01-78....$104.50 (gross wage - $156.75)... $ 41.80 10-01-79....$113.00 (gross wage - $169.50)... $ 45.20 10-01-80....$122.00 (gross wage - $183.00)... $ 48.80 10-01-81....$133.50 (gross wage - $200.25)... $ 53.40 10-01-82....$145.00 (gross wage - $217.50)... $ 58.00 10-01-83....$156.50 (gross wage - $234.75)... $ 62.60 10-01-84....$164.50 (gross wage - $246.75)... $ 65.80 10-01-85....$171.00 (gross wage - $256.50)... $ 68.40 10-01-86....$180.00 (gross wage - $270.00)... $ 72.00 10-01-87....$188.00 (gross wage - $282.00)... $ 75.20 10-01-88....$195.50 (gross wage - $293.25)... $ 78.20 10-01-89....$206.50 (gross wage - $309.75)... $ 82.60 10-01-90....$214.00 (gross wage - $321.00)... $ 85.60 10-01-91....$221.50 (gross wage - $332.25)... $ 88.60 20% of the SAWW or the employee's actual weekly wage, whichever is less 10-01-92 ........... $91.80 10-01-93 ........... $96.80 10-01-94 ........... $98.40
Set by statute, the listed amount or the employee's actual weekly wage, whichever is less

10-01-95 ........... $104.00 10-01-00 ........... $130.00

10-01-82...............$188.50 10-01-83...............$203.45 10-01-84...............$213.85 10-01-85...............$222.30 10-01-86...............$234.00 10-01-87...............$244.40 10-01-88...............$254.15 10-01-89...............$268.45 10-01-90...............$278.20 10-01-91...............$287.95 10-01-92...............$298.35 10-01-93...............$314.60 10-01-94...............$319.80 10-01-95............. $328.25 10-01-96...............$340.60 10-01-97...............$359.45 10-01-98...............$376.35 10-01-99...............$399.75 10-01-00...............$417.30 10-01-01...............$442.00 10-01-02...............$456.30 10-01-03 ...............$466.70 10-01-04...............$481.00

*Rounding applies to supplementary benefits.

(65% of $290) (rounded to $204) (rounded to $214) (rounded to $223) (round) (rounded to $245) (rounded to $255) (rounded to $269) (rounded to $279) (rounded to $288) (rounded to $299) (rounded to $315) (rounded to $320) (rounded to $329)* (rounded to $341)* (rounded to $360)* (rounded to $377)* (rounded to $400)* (rounded to $418)* (round) (rounded to $457)* (rounded to $467)* (round)

ERGONOMICS

DISORDERS:

40 percent of all Minnesota days-away-from-work cases

By Brian Zaidman, Research Analyst Research and Statistics

The U.S. Department of Labor, Bureau of Labor Statistics (BLS), recently released the 2002 survey state-level estimates for work-related musculoskeletal disorders (WMSDs). These statistics are based on cases with at least one day away from work (DAFW) collected as part of the annual Survey of Occupational Injuries and Illnesses. The data shows there were approximately 13,300 DAFW cases with WMSDs in Minnesota in 2002, accounting for 40 percent of all DAFW cases. Because of changes by OSHA to its recordkeeping requirements, the data for 2002 is not comparable with data for prior years. (The recordkeeping changes are explained at the end of the article.) BLS defines WMSDs as disorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs that are not caused by slips, trips, falls, motor-vehicle accidents or other similar accidents. The BLS tables provide data for private industry in the country as a whole and for each state that participates in the BLS survey. Information about WMSD cases involving state and local government employees are available for some states, including Minnesota. Figure 1 shows: • There were an estimated 13,310 WMSD cases in Minnesota in 2002. Between 2000 and 2001, the overall number of WMSD cases decreased from 16,340 to 13,150. • The estimated number of cases in 2002 is similar to the estimate for 2001. Because of the recordkeeping changes, it is unclear whether actual changes in job safety occurred or whether there was an effect from the recordkeeping itself.
Figure 1: Number and incidence rate1 of musculoskeletal disorders in Minnesota involving days away from work Year Private industry Number 1998 1999 2000 2001 2002
1

State government Number 360 230 230 200 210 Incidence rate 46.0 33.3 37.9 31.5 35.5

Local government Number 1,240 1,290 1,240 1,130 1,070 Incidence rate 71.0 68.7 68.7 55.1 53.5

Incidence rate 76.4 80.5 80.5 66.7 68.7

13,550 14,520 14,870 11,830 12,030

Incidence rates represent the number of injuries and illnesses per 10,000 full-time workers. Source: Bureau of Labor Statistics, U.S. Department of Labor.

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• COMPACT • August 2004

Figure 2 shows, for private employers in 2002: • The percentage of DAFW cases that were WMSDs was similar in Minnesota, Iowa and Wisconsin, and was slightly above the national rate. These percentages were nearly unchanged from the previous year. • The rate of WMSD injuries in Minnesota was above the national rate, slightly above Iowa’s rate and 13 percentage points below Wisconsin’s rate. • Minnesota WMSDs had a lower median number of days-away-from-work than the neighboring states and the national average.
Figure 2: WMSDs in the United States, Minnesota and neighboring states, private employers, 2002 Minnesota Total DAFW cases Number of WMSDs Percent of all DAFW cases1 WMSDs per 10,000 FTEs Median days-away-from-work: all injuries all WMSDs carpal tunnel syndrome
1

Iowa 15,740 6,180 39.3% 64.2 5 7 18

Wisconsin 38,430 15,170 39.5% 81.5 6 7 38

United States 1,436,200 488,000 34.0% 55.3 7 9 30

29,380 12,030 40.9% 68.7 5 6 27

Days-away-from-work (DAFW) cases occur when workers miss at least one day away from work after the day of the injury. WMSD injuries are only identified among DAFW cases. Source: Bureau of Labor Statistics, U.S. Department of Labor.

Recordkeeping changes

The OSHA recordkeeping changes affect which injuries and illness are recordable, how injuries and illnesses are categorized, and how days away from work are counted. These changes make direct comparisons between the 2002 results and those for earlier years unreliable. Data from earlier years is provided to show the trend during the previous years. Some of the recordkeeping changes that affect the number of WMSD cases are: • An aggravation of a case where signs or symptoms have not been resolved is not a new case, even if the aggravation was caused by a new event or exposure. Previously, each new event or exposure was treated as a new case. • Under the previous requirements, a cumulative trauma disorder was considered a new case if no care was received for the previous 30 days. The new requirements have no such criteria. In the absence of a new work-related event or exposure, the reappearance of signs or symptoms may be treated as part of the previous case. • WMSDs are recordable when general recording criteria are met. Previously, WMSDs were recordable under the general criteria or when identified through a clinical diagnosis or diagnostic test. For more Bureau of Labor Statistics survey information about WMSD cases, contact Brian Zaidman by e-mail at brian.zaidman@state.mn.us.
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• COMPACT • August 2004