The Hawaii Legislature will consider three new bills this session intended to break down obstacles for workers seeking compensation for their injuries on the job, the subject of “Waiting in Pain,” a Civil Beat investigation published in December.

House Bill 1694 would require both sides in a workers’ comp dispute to agree on a doctor to examine an injured worker, a break from the current law that allows insurance companies to decide. The reports are often used to deny treatment to injured workers.

House Bill 1640 would compel insurers to pay claims for workers not covered by prepaid health plans while the company investigates. Under current practice, insurers may deny claims while they’re being investigated.

And House Bill 2202 would clarify that doctors examining injured workers owe the same duty of care as to a traditional patient. Some doctors now tell injured workers that they are not establishing a treating relationship.

Daniel Junker walks near the fence/rear of warehouse where he was stabbed by an assailant while patroling as a security guard.
Daniel Junker was stabbed by an assailant while patrolling as a security guard, but said he has had difficulty obtaining medical treatment through the workers’ compensation system. Cory Lum/Civil Beat

All three bills were introduced by Rep. Aaron Ling Johanson, chair of the House Labor and Public Employment Committee. Companion bills have been introduced on the Senate side.

Similar versions of at least two of the bills have been considered before by the Legislature. In the past 10 years, for instance, a dozen attempts to require both sides in a workers’ comp dispute to agree upon an examining doctor all died.

But Dr. Scott Miscovich, one of the few Hawaii physicians who still treats workers’ comp patients, believes this time might be different.

“We’re really looking forward to this session,” Miscovich said. “We finally think we’re going to have an opportunity to change the dynamics of the workers’ comp system. Both the workers and the employers will benefit if these changes are implemented because of more rapid access to care and elimination of the delays that favor the insurance companies.”

Daniel Junker, an injured worker profiled in one of Civil Beat’s stories, said he hopes the bills will result in real change “but I’m not going to hold my breath.”

“Every time they put something in writing they keep doing amendments so it doesn’t amount to a hill of beans,” he said.

Dr Scott Miscovich IME Workers comp story.
Dr. Scott Miscovich thinks workers’ compensation reform has a shot this session, even though it has failed in the past. Cory Lum/Civil Beat

Just this week, Junker said, a plan to treat his injured shoulder was rejected by the insurer. He hoped to put the surgery behind him and get on with his life, but now must embark on another round of appeals.

“Delays and denials” motivated the new round of legislation.

“The legislature finds that Hawaii’s existing workers’ compensation system has been plagued by delays and denials, and in many of those cases, insurers seem to automatically deny the claim pending investigation,” according to HB 1640. “These investigations may include reviewing reports from an independent medical examiner, interviewing other employees, looking at videotapes, or combing through old medical records for evidence as to whether the workplace injury was related to a pre-existing condition.

“While the insurer considers, sometimes for months, how to proceed on a claim, the patient is at times unable to receive compensation,” the bill says. “The purpose of this Act is to prevent employers from denying a workers’ compensation claim without reasonable cause or while the claim is pending investigation and to impose fines and penalties on employers who continue doing so without reasonable cause.”

The Hawaii Insurers Council, a nonprofit association that advocates for insurance industry positions, did not respond to a request for comment.

The state Department of Labor and Industrial Relations, which administers the workers’ comp law, said it was still analyzing the bills and had not taken a position.

Civil Beat’s investigation focused, in part, on insurance company examinations of injured workers. It found that some insurance doctors almost always cited reasons to deny treatment, such as a pre-existing conditions unrelated to work.

Injured workers in many of these cases could overcome insurance company denials, but only after hiring lawyers and going through years of appeals, during which they might receive little or no treatment or compensation.

Under HB 1694, the bill requiring both sides in a workers’ comp case to agree upon a doctor to examine the injured worker, the insurer would pay the doctor. If the two sides were unable to agree, the state labor department would appoint a doctor and pay for the exam with state funds. In either case, the exam would have to be done in 45 days.

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