CHAPTER 1 – GENERAL PROVISIONS

 

            Section 1.       Authority.  These rules, regulations and fee schedules are adopted by the Administrator pursuant to the requirements and authority of the Wyoming Worker's Compensation Act (the "Act").  Specific authority and direction is found in W.S. §§ 27‑14‑102(a)(i), 102(a)(xii), 201(o), 201(q), 202(e), 205(b), 306(d), 401(e), 402, 404(a), 408(e)(ii), 501(a), 502(a), 506(a) and (b), 601(e), 616(b)(i) and (ii), 616(d), 802(a) and (c) and in the requirements of the Wyoming Administrative Procedure Act, W.S. § 16-3-101 through 115.

 

            Section 2.       Effective Date.  These rules, regulations and fee schedules become effective on the date filed with the Wyoming Secretary of State, and replace all prior rules and regulations of the Employment Tax Division and Workers’ Safety and Compensation Division within the Wyoming Department of Employment.  However, to the extent these rules affect a worker's substantive right to benefits, the rules in effect at the time of injury apply.  Pursuant to W.S. § 27‑14‑602, eligibility for and amount of benefits are determined pursuant to the law in effect on the date of injury.

 

            Section 3.       Introduction.  Workers' Compensation is a program, authorized by the Wyoming Constitution and created by statute, to provide medical, wage and disability benefits to workers injured while working in covered employment.  The benefits are available without regard to any fault of the employer.  For covered injuries, the program takes the place of the injured worker's right to sue the employer.  In some cases, benefits are also available to the injured worker's dependent family.  The purpose of these rules, and regulations and fee schedules is to implement the provisions of the Wyoming Workers’ Compensation Act, Wyoming Statutes §§ 27‑14‑101 through 27‑14‑805.

 

            Section 4.       Definitions.

 

            (a)       49 CFR Part 40.  Means Title 49, Part 40 of the Code of Federal Regulations (CFR) as revised October 1, 2004.

 

            (b)       AB Rated.  Drug products made by different distributors and/or repackagers that are considered therapeutically equivalent based on demonstrated bioequivalence.

 

(c)       Actively Seeking Work.  For purposes of benefit eligibility, a claimant is actively seeking work if the claimant provides tangible evidence of the work search to the Division.   Completion of the work search form will be considered tangible evidence.  The work search must contain a minimum of five contacts per week over the course of a six week period.  The six week period must be immediately preceding the date the application is filed with the Division or immediately following the date the application is filed with the Division.  The contacts listed on the work search must be made for work the claimant is reasonably qualified to perform and is willing to accept.  Actions that would be considered an active search for employment include completing job applications, faxing or mailing resumes (include proof), or visiting the employers in person.  Claimant must contact the employer he was working for at the time of injury to inquire if the employer has work available within their medically documented restrictions.

 

            (d)       Actual Monthly Earnings.

 

                        (i)        Income the employee was receiving from all employment at the time of injury and which is lost due to the injury, including:

 

                                    (A)      actual value of board, lodging, rent, or housing and per diem expenses to be included within the actual wage as remuneration, if such board, lodging, rent or housing and per diem is lost as a result of the injury;

 

                                    (B)       commissions and bonuses;

 

                                    (C)       the average amount of overtime pay received in the six months before the injury or guaranteed by written agreement between the employer and employee entered into before the injury;

 

                                    (D)      gratuities received in the course of employment, from others than the employer, only when such gratuities are received with the knowledge of the employer and reported to the United States Internal Revenue Service by the employee or the employer;

 

                                    (E)       wages earned from employment at more than one occupation or employer other than the employer at the time of injury, if those wages are lost due to a compensable injury; and

 

                                    (F)       unemployment insurance benefits paid to the injured employee during the 12 months preceding the month of injury will be taken into account when computing the actual monthly earnings in cases where there are special circumstances under which the actual monthly earnings cannot be determined.

 

                        (ii)       The term "actual monthly earnings" does not include:

 

                                    (A)      severance pay;

 

                                    (B)       the cash value of health, medical, life or other insurance benefits or retirement benefits;

 

                                    (C)       social security benefits;

 

                                    (D)      passive investment income such as income from stocks, bonds, trust accounts, or individual retirement accounts;

 

                                    (E)       any adjustments to the employee's income, as defined in paragraph (i) of this subsection, made subsequent to the date of accident or incident causing the original injury; and,

 

 

 

                                    (F)       the amount reimbursed to an employee for any special expense incurred by the employee by the nature of the employment.

 

            (e)       Administrator.  The Administrator of the Workers' Safety and Compensation Division (the "Division") within the Wyoming Department of Employment.  The Administrator is the person selected by the Director of the Department to manage the Division.  W.S. § 27-14-

102(a)(v) and (vi). 

 

(f)        Alcohol.  Ethyl alcohol or other low molecular weight alcohols, including methyl or isopropyl, from whatever source or by whatever process produced.

 

            (g)       Alcohol Test.  Means an analysis of breath or saliva or any other analysis, which determines the presence and level or absence of alcohol, as authorized by the United States Department of Transportation in its rules and guidelines concerning alcohol testing and drug testing.

 

(h)       Certified Laboratory.  Any United States laboratory certified by the United States Department of Health and Human Services (HHS) under the National Laboratory Certification Program as meeting the minimum standards of Subpart C of the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs.

 

(i)        Chain of Custody.  The methodology of tracking specified materials or substances for the purpose of maintaining control and accountability from initial collection to final disposition for all such materials or substances, and providing for accountability at each stage in handling testing, storing specimens, and reporting test results.

 

            (j)        Claim.  An application for benefits under the Act using the forms provided by the Division.

 

            (k)       Clerical Office Occupations.  Employees whose duties are confined to keeping the books and records of the business or who are engaged wholly in office work where such books and records are kept, having no other duties of any nature in or about the premises of the business.  Employees who qualify for the clerical office occupation classification may include personnel with supervisory duties if the performance of those duties does not require any work away from the office environment.  Employees qualifying for the clerical office occupation classification who perform any duty away from the office environment become disqualified for the clerical office occupation classification in the reporting period when the non‑clerical work is performed, with a limited exception allowed solely for direct travel to and from a local post office or bank.

 

            (l)        Employers must request the clerical coverage classification in writing on a form prescribed by the Division showing the name and a detailed description of job duties and responsibilities for each worker for whom clerical coverage is requested.

 

 

 

            (m)      Chiropractic Utilization Guidelines.  Means the August 2005 edition of the most recent edition of the Chiropractic Utilization Guidelines for the Care and Treatment of Injured

Workers, as policy for the determination of compensability of appropriate and reasonable chiropractic treatment in the provision of care for injured workers.  These guidelines are

available upon request through the Division and may be obtained on-line at http://wydoe.state.wy.us/wscd.

 

            (n)       Comparable Wage.  A wage that is at least 95% of the gross earnings paid for the worker’s regular employment at the time of the injury.  W.S. § 27‑14‑405(h)(i).

 

            (o)       Computation of Time.  In computing any period of time prescribed by the Act or these rules, except the 72 hour period prescribed in W.S. § 27‑14‑502 and in Chapter 4, Section 1 of these rules, the day of the act or event from which the designated period of time begins to run shall not be included.  The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or legal holiday, or, when the act to be done is the filing of a paper, a day on which weather or other conditions have made the offices of the Division inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days.  When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.  When the period of time prescribed or allowed is 11 or more days, intermediate Saturdays, Sundays, and legal holidays shall be included in the computation. As used in this rule, "legal holiday" includes any day officially recognized as a legal holiday in this state by designation of the legislature or appointment as a holiday by the governor.

 

            (p)       Concurrent Review.  Concurrent review is performed while the injured worker is still an inpatient and services are being rendered.  The review can occur if there is a need to extend a current hospitalization, during an emergency admission, or when a provider/facility notifies the Division of an admission for a non-emergent procedure and a preauthorization was not performed.

 

            (q)       Confirmation Test.   A second analytical procedure used to identify the presence of a specific drug, alcohol or metabolite in a specimen.  The confirmation test shall be different in scientific principle from that of the initial test procedure.  The confirmation method shall be capable of providing requisite specificity, sensitivity, and quantitative accuracy.  

 

            (r)        Corporate Officers and Members of Limited Liability Companies.

 

                        (i)        Elective coverage for officers of a corporation or members of a limited liability company, under W.S. § 27-14-108(k) must be requested in writing on a form provided by the WSCD.

 

                                    (A)     Initial registration means the first time a corporation or limited liability company files a joint registration form with the WSCD, regardless of the status of the corporation or limited liability company as a result of that filing.

 

 

                        (ii)       Corporations which elect to obtain coverage under the act must notify the ETD within 30 days of a change in corporate officers.  The election of corporate officers will transfer from the prior individual to the newly elected officer in the same position.

 

                        (iii)      Corporate officers shall be clearly identified as such on all reports to WSCD.

 

(iv)          Coverage will be discontinued at the end of the month in which the position no longer exists or the position becomes vacant.  The WSCD must be notified in writing within 30 days of such changes.

 

(v)            Elected coverage is reported at and based on the statewide average wage, pursuant to W.S. § 27-14-205(c).  When coverage is elected upon initial registration, premiums are due based on the monthly statewide average wage beginning with the month in which the coverage was elected.

 

            (s)        Dependent.  For purposes of W.S. § 27‑14‑102(a)(vii)(E), "dependent" means any person claimed as a dependent for Federal Income Tax purposes by the employee.

 

            (t)        Division.  The Division of Workers' Safety and Compensation of the Department of Employment.

 

            (u)       Drug.  Marijuana, Cocaine, Amphetamine, Opiate, Phencyclidine (PCP), a metabolite of any of the substances, or any other controlled substance subject to testing pursuant to drug testing regulations adopted by the United States Department of Transportation.

 

(v)       Drug Test.  Means any chemical, biological, or physical instrumental analysis administered by a certified laboratory for the purpose of determining the presence, or absence of a drug or its metabolites pursuant to regulations governing drug or alcohol testing adopted by the United States Department of Transportation.

 

            (w)      Elective Surgery.  Elective Surgery is surgery, which may be required in the process of recovery from an injury or illness but need not be done as an emergency to preserve life, function or health.

 

            (x)       Extrahazardous Employment.  Those industries, employment and occupations specified in W.S. § 27‑14‑108(a), (d) and (e).

 

            (y)       Emergency Health Care Services.  Emergency health care services means health care services for a medical condition manifesting itself by acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonably be expected to place the injured worker’s health in serious jeopardy.

 

 

 

 

            (z)       Expert Reviewer.  Expert reviewer means a physician competent to evaluate the specific clinical issues involved in the medical treatment services and where these services are within the scope of the physician’s practice.

 

            (aa)      Filing. Except as otherwise provided in the Act or these rules and regulations, a document shall be deemed to have been filed with the Division on the date it is received by the Division in the manner prescribed by the Act or these rules and regulations.

 

            (ab)     Fiscal Year.  A 12-month period of time used for State budgetary purposes which commences on July 1 of each year and ends on June 30 in the following year.

 

            (ac)      Fixed Base of Operations.  See definition for "Principal Place of Business" in subsection (aw) of this section.

 

            (ad)     Gainful Employment.  The individual having returned to work at a wage of no less than minimum wage, for at least 20 hours per week for a period of two consecutive months.  W.S. §§ 27‑14‑404(b) and 27‑14‑408(a)(ii).

 

            (ae)      Hearing Examiner.  The Office of Administrative Hearings (OAH) or Medical Commission, as appropriate.

 

            (af)      Inside Sales.  (Automotive Vehicle Sales) A position predominantly engaged in automotive vehicle sales at the premises of the business.  Positions with duties involving servicing equipment do not qualify for coverage under the sales classification.

 

(i)         Employers must request the inside sales (automotive vehicle sales) classification in writing on a form provided by the Division.

 

                        (ii)       An election under this subsection shall become effective the first day of the calendar quarter following the calendar quarter in which the election is made.

 

            (ag)     Intoxicated.  Means pursuant to W.S. § 27-14-102(a)(xi)(B)(I) a positive alcohol test result at or above .08 alcohol concentration level.

 

(ah)             Maximum Medical Improvement (MMI).  A medical condition or state that is well stabilized and unlikely to change substantially in the next year, with or without medical treatment.  Over time, there may be some change; however, further recovery or deterioration is not anticipated.  This term may be used interchangeably with the term "ascertainable loss", defined in W.S. § 27-14-102(a)(ii).

 

 

            (ai)      Medical and Hospital Care.  For purposes of WS 27-14-102(a)(xii), “personal items” are defined as:

 

(i)              Clothing;

 

(ii)       Footwear, unless such items are professionally altered to accommodate the compensable injury;

 

(iii)      Hot tubs, spas or any other devices wherein water is heated and/or circulated;

 

(iv)      Programs, aids, medications or dietary supplements primarily intended to help the worker stop smoking or lose weight;

 

(v)            Exercise equipment;

 

(vi)          Beds, mattresses or mattress toppers; and

 

(vii)        Recliners or lift chairs.

 

            (aj)      Medical Disability Advisor.  Means the most recent of the Medical Disability Advisor, as published by Reed Group, Ltd., as guidelines for disability duration.  Exceptions to this include any mental injury unless it is compensable pursuant to W.S. § 27‑14‑102(a)(xi)(J).  This publication is intended to be used as a reference only, not as a definitive determination of disability durations, subject to the following conditions:

 

                        (i)        For uncomplicated medical and surgical cases;

 

                        (ii)       Used as a tool against which the provider or medical professional should weigh the totality of his/her professional knowledge;

 

                        (iii)      Used in conjunction with current case‑specific information; and

 

                        (iv)      Not to be used as a substitute for quality case management of any medical disability situation.

 

            (ak)     Medical Service.  Medical service means any medical, surgical, diagnostic, chiropractic, hospital, nursing care, ambulances, drugs, medicine, durable medical equipment, prosthetic appliances, physical restorative services.

 

            (al)      Medically Necessary.  ”Medically necessary treatment” means those health services for a compensable injury that are reasonable and necessary for the diagnosis and cure or significant relief of a condition consistent with any applicable treatment parameter.

 

            (am)    Mentally Incompetent.  For purposes of W.S. § 27‑14‑505, an individual is mentally incompetent if, due to a medically diagnosed mental disorder, the individual lacks the ability to comprehend that an injury is compensable and lacks the ability to comprehend that certain statutory guidelines must be complied with in order to receive benefits.

 

 

 

(an)     Normal Activities of Day‑to‑Day Living.  When the employer retains the right to control the manner in which an activity is performed, the activity is not within "the normal activities of day‑to‑day living" as used in W.S. §27-14-102(a)(xi)(G).

 

            (ao)     Other Related Expenses.  As used in W.S. § 27-14-403(e)(ii), "other related expenses" means expenses related to a funeral, burial or cremation, including a wake or reception, headstone or marker, and transportation and lodging for the immediate family, in those situations where a work-related injury culminated in death. 

 

                        (i)        The surviving family member, or guardian, eligible to receive reimbursement for other related expenses must submit a request for reimbursement on a form provided by the Division and follow the procedure outlined in Chapter 7, Section 4(a)(iii) of these Rules.

 

                                    (A)      The term "immediate family" is defined as the spouse, child(ren), step-child(ren), grandchild(ren), parent(s), step parent(s), parent in-laws, grandparent(s), step grandparent(s), grandparent in-law(s), sibling(s), step sibling(s), half sibling(s), and sibling in-law(s) of the deceased.

 

            (ap)     Outside Sales.  A position with duties predominantly engaged in sales or collections away from the premises of the business.  The position may include duties performed at the business premises that are necessary to the position’s outside sales duties.  Positions with duties involving servicing equipment or delivery of the employer's product do not qualify for coverage under the outside sales classification.

 

(i)           Employers must request the outside sales classification in writing on a form provided by the Division.  Duties for each outside sales classification position must be clearly identified.

 

(ii)            An election under this subsection shall become effective the first day of the calendar quarter following the calendar quarter in which the election is made.

 

(aq)     Positive Drug Test.  Means a level of drugs or metabolites in the body at or above the cutoff concentration levels as specified in Chapter 10 Section 2 (c)(i)(A).

 

            (ar)      Preauthorization.  Prospective review and approval of health care based on medical necessity and reasonableness.

 

(i)              Injured worker through their health care provider must request preauthorization before the health care is provided.

 

            (as)      Prescription Medication.  A drug or medication lawfully prescribed by a physician for an individual and taken in accordance with the prescription. 

                       

 

 

            (at)      Prescription Lenses.  The term “prescription lenses” refers to any lens, whether eyeglass, contact or implant prescribed to correct one’s visual impairment.  When referring to eyeglasses, this term includes lenses and eyeglass frames.

 

            (au)     Primary Treating Health Care Provider.  The health care provider selected by the employee to administer and direct medical treatment for his compensable injury W.S. § 27-14-401(f).

 

            (av)     Principal Place of Business.  For purposes of W.S. § 27-14-301(b), a "principal place of business within the state established for legitimate business‑related purposes" must have the following characteristics:

 

(i)              exclusive use of fixed premises with a recognizable physical address;

 

(A)      A business sharing building or trailer space must have a clearly defined location used exclusively for its business.

 

                        (ii)       at least one employee who regularly performs most of his services for the business in or based out of the fixed premises;

 

                        (iii)      is accessible by mail or other recognized delivery service; and

 

                        (iv)      regularly conducts its primary business or necessary ancillary services at the fixed premises.

 

            (aw)     Rating System.

 

                        (i)        Base Rate.  As used in these rules and regulations, the term "base rate" means that percentage of total payroll necessary to maintain an actuarially sound workers' compensation insurance program.  Each major industry classification shall have a separate base

rate based upon that industry's primary nature of business regardless of individual occupations within that industry. 

 

                        (ii)       Experience Rating.  As used in these rules and regulations, the term "experience rating" means that percentage increase or decrease which is applied to the base rate

charged an eligible employer based upon its claims experience. 

 

                        (iii)      Consolidated Accounts.  Employers electing a consolidated account as provided in W.S. § 27‑14‑202(d) shall report each worker within the classification for which the worker performs the largest percentage of services.

 

 

 

                        (iv)      Presumed Pay of Specified Workers.  Deemed income for those categories of workers identified in W.S. § 27‑14‑205(b) shall be calculated by determining the amount of

 

premium income necessary to pay actuarially anticipated losses in each category during the rating period, and considering the anticipated number of covered workers and the appropriate premium rate for each category.

 

            (ax)     Reasonable Period of Recuperation.  As used in W.S. § 27-14-404(b), a "reasonable period of recuperation" includes the day of surgery and the period of recuperation for the surgery performed as specified in the Medical Disability Advisor, as adopted by the Administrator in Chapter 1, Section 4 of these Rules.

 

                        (i)        The recuperation period may be extended to include the day before surgery, if the treating physician certifies that in-patient confinement is medically necessary to ensure that the compensable surgery is not compromised.

 

                        (ii)       When the period of recuperation extends beyond that specified in the Medical Disability Advisor, TTD must be certified by the treating physician every 60 days.

 

                        (iii)      When the period of recuperation extends beyond that specified in the Medical Disability Advisor, the Division will contact the treating health care provider to determine the basis for the extended disability.

 

                                    (A)      When the explanation for extended disability is deemed insufficient, the Division may obtain a second opinion from an independent evaluator to determine the basis for the continuing disability.

 

            (ay)     Rehabilitation Therapy Utilization Guidelines.  Means the Revised February 8, 2008 edition of the of the Rehabilitation Therapy Utilization Guidelines for the Care and Treatment of Injured Workers, as policy for the determination of compensability of appropriate and reasonable physical, occupational and speech therapy treatment in the provision of care for injured workers. These guidelines are available upon request through the Division and may be obtained on-line at http://wydoe.state.wy.us/wscd

 

            (az)      Remuneration.  Except as provided in W.S. § 27‑14‑102 (a)(ix), if board, lodging or any other payment in kind, considered as payment for services performed by a worker, is in addition to or in lieu of a monetary wage, the Division shall determine or approve the cash value of such payment in kind, and the employer shall use these cash values in computing the employee's wages and contributions due under the law.  Remuneration shall not include reimbursement for actual travel expenses or a reasonable per diem amount, or the cash value of insurance or retirement benefits.

 

(ba)     Specimen.  Means tissue, fluid, or a product of the human body capable of revealing the presence of alcohol, drugs or their metabolites.

 

            (bb)     Suitable Employment.  Employment for which the worker has the necessary physical capacities, knowledge, transferable skills and abilities.  W.S. § 27‑14‑405(h)(iii).

 

 

            (bc)     Under the Influence of a Controlled Substance.  Means pursuant to W.S. § 27-14-102(a)(xi)(B)(I) a positive drug test conducted in accordance with the U.S. DOT drug and alcohol testing regulations from an HHS-certified laboratory.

 

            (bd)     United States Territory.  Extraterritorial coverage shall be limited to the other states, Washington D.C., Puerto Rico, Virgin Islands, American Samoa, Guam, Northern Marianas, Marshall Islands, the Federated States of Micronesia, Palau, Midway Islands, Wake Island, Johnston Island and Sand Island.  W.S. § 27‑14‑301(a)(ii).

 

(be)     University of Wyoming .

 

            (i)        UW Professionals with Lab.  Professional faculty, administrators, and support personnel of institutions of learning whose duties include performing in a scientific laboratory environment.

 

            (ii)       UW Professional without Lab.  Professional faculty, administrators, and support personnel of institutions of learning whose duties do not include performance in a scientific laboratory environment.

 

            (iii)      UW Clerical.  Support staff of institutions of learning who typically work in an office environment, whose duties do not include performing in a scientific laboratory environment.

 

            (iv)      UW Non-Professional.  Positions not defined in (i), (ii) or (iii) of this subsection

 

(bf)      Usual and Customary.  The provider’s charge to the general public for the same or similar service.

 

            Section 5.       Rules of Procedure for Hearings Before the Workers' Safety and Compensation Division.

 

            (a)       Applicability.  These rules and procedures shall apply to all contested cases, as defined by the Wyoming Administrative Procedure Act, which are not required to be referred to the Office of Administrative Hearings (OAH) or Workers' Compensation Medical Commission.  For example, this section shall govern contested cases over such matters as rate classification and the Division's annual premium rate filing.

 

            (b)       Definitions.

 

                        (i)        Department.  The Department of Employment.

 

                        (ii)       Director.  The Director of the Department of Employment or the Director's deputy, examiner or assistant appointed by the Director in writing.

 

 

                        (iii)      Petitioner.  The person(s) or organization(s) requesting a hearing as provided in the Wyoming Worker's Compensation Act and the Administrative Procedure Act.

 

                        (iv)      Hearing.  The evidentiary proceeding in any "contested case" as defined in the Wyoming Administrative Procedure Act which is not required to be referred to the Office of Administrative Hearings (OAH) or Workers' Compensation Medical Commission.

 

                        (v)       Hearing Officer.  The Administrator of the Division or such person or persons as the Administrator designates in writing to preside over the contested case and conduct the hearing.  No person shall serve as hearing officer who directly participated in making the determination which is the subject of the contested case.

 

                        (vi)      Commencement of Case.  All contested case proceedings shall be commenced by filing a written petition/request for hearing with the Division.  The petition shall include:

 

                                    (A)      The name, address and telephone number of each petitioner.

 

                                    (B)       A statement of the facts upon which the petition is based, including, whenever applicable, particular reference to the determination, statutes, rules, regulations and orders that the applicant believes are relevant to the case.

 

                                    (C)       The determination or other relief requested by the petitioner.

 

            (c)       Notice.  Upon filing of a petition, the Division shall issue a notice as required by the Wyoming Administrative Procedure Act, stating:

 

                        (i)        The time, place and nature of the hearing;

 

                        (ii)       The legal authority and jurisdiction under which the hearing is to be held;

 

                        (iii)      The particular sections of the statutes and rules involved; and,

 

                        (iv)      A short and plain statement of the matters asserted.

 

            (d)       Service of Notice.  Notice may be served personally, by mail or by publication, as provided by the Wyoming Administrative Procedure Act.  Service by mail shall be deemed

 

complete at the date of mailing.  The hearing officer may require additional notice to be given in such manner, as the hearing officer shall direct.

 

            (e)       Docket.  When a petition/request for hearing is filed, it shall be assigned a docket number in accord with a system established by the Division.  The Division shall establish a separate file for each hearing in which shall be systematically placed all related papers,

 

 

pleadings, documents, transcripts, evidence and exhibits.  All documents filed in the case shall note the docket number assigned and the date of filing.

 

            (f)        Subpoenas.  As authorized by the Administrative Procedure Act and Worker's Compensation Act, subpoenas for appearance and to produce books, papers, documents or exhibits will be issued by the hearing officer upon written request of any party.

 

(g)            Hearing.  At the date, time and place of hearing the hearing officer shall hear all matters presented in accord with the Wyoming Administrative Procedure Act.  Parties shall appear in person or by telephone and may be represented by counsel, provided that such counsel

 

be duly authorized to practice law in the State of Wyoming or is otherwise associated at the hearing with one or more attorneys authorized to practice law in this State.

 

            (h)       Order of Procedure at Hearing.  Hearings shall generally be conducted informally, in accordance with the following procedure:

 

                        (i)        The hearing officer shall announce that the hearing is convened, the title of the matter and case to be heard and shall note for the record all subpoenas issued and all appearances.  The hearing officer shall state that the hearing is informal, that strict rules of evidence will not apply, and shall briefly describe the method in which the hearing will be conducted.

 

                        (ii)       Short opening statements may be permitted at the discretion of the hearing officer.

 

                        (iii)      Presentation of evidence by petitioner(s).  Witnesses may be cross‑examined by the Division or other parties.  All exhibits shall be marked for identification.

 

                        (iv)      Presentation of evidence by the Division.  Witnesses may be cross-examined by the other parties.  All exhibits shall be marked for identification.

 

                        (v)       Closing statements or arguments may be made at the discretion of the hearing officer.

 

                        (vi)      After all proceedings have been concluded, the hearing officer shall excuse all witnesses and declare the hearing closed.  The record may be supplemented with additional evidence or written briefs at the discretion of the hearing officer and within such time as directed by the hearing officer.

 

            (j)        Witnesses to be Sworn.  All persons testifying at any hearing shall stand and be administered the following by the hearing officer:

 

"Do you swear (or affirm) to tell the truth, the whole truth and nothing but the truth in this hearing now before the hearing officer?"

 

            (k)       Applicable Rules of Civil Procedure to Apply.  The Wyoming Rules of Civil Procedure shall apply and be followed in hearings before the Division, to the extent not inconsistent with these rules.

 

            (m)      Presence of Attorney General.  In all hearings before the Division, the

 

Division may request the Attorney General of the State of Wyoming, or a representative of his staff, to be present to assist and advise the Division.

 

            (n)       Record of Proceedings‑Reporter.  Hearings shall be electronically recorded unless a party provides for a court reporter at its own expense.  The hearing officer may direct the party or parties requesting a transcript to assume the cost of the transcript.

 

            (o)       Depositions.  In all contested cases the taking of depositions and discovery shall be available to the parties as provided in the Wyoming Rules of Civil Procedure and the Administrative Procedure Act.

 

            (p)       Decision, Findings of Fact and Conclusions of Law, and Order. The hearing officer shall make a written decision and order containing Findings of Fact, Conclusions of Law and Recommended Decision.  Such decision and order shall be filed with the Division within 15 days of the close of the hearing.  The Division shall send a copy by prepaid mail to each party, or their attorneys of record.  The Administrator shall act on the recommendation of the hearing officer within 30 days of receiving the hearing officer's report.

 

            (q)       Appeals to District Court.  Appeals to the district court from decisions of the hearing officer are governed by the Wyoming Administrative Procedure Act and Rule 12 of the Wyoming Rules of Appellate Procedure.

 

            (r)        Transcript in Case of Appeal.  In case of an appeal to the district court, the party appealing shall secure and file a transcript of the testimony and all other evidence offered at the hearing, which transcript must be verified by the oath of the person who transcribed the testimony as a true and correct transcript of the testimony and other evidence in the case.  The compensation of the person making the transcript and all other costs involved in the appeal shall be borne by the party prosecuting the appeal unless otherwise ordered by the district court at the conclusion of the appeal.

 

            (s)        Pre-Hearing Conference.  At any time on or before the day of any hearing, the hearing officer may direct the parties to appear before the hearing officer for a pre hearing conference.  Such conferences shall be conducted informally.  The hearing officer shall prepare an order reciting or shall read into the record the results of the conference.  The pre‑hearing order

will control the course of the hearing unless modified by the presiding officer to prevent manifest injustice.  A party who believes a pre‑hearing order does not fully cover the issues presented, or

 

is unclear, may petition for a further ruling within ten days after receipt of the order. The pre hearing conference shall be convened to consider:

 

                        (i)        the simplification of the issues;

 

                        (ii)       the necessity or desirability of amending the pleadings;

 

                        (iii)      the possibility of obtaining admissions of fact and of documents to avoid unnecessary proof;

 

                        (iv)      formulating additional procedures to govern the hearing; and,

 

                        (v)       such other matters as may aid in the disposition of the case.

 

            (t)        Additional Rules for Contested Ratemaking Proceedings.  The following additional rules shall apply to contested cases involving the Division's annual rate filing pursuant to W.S. § 27-14-201(c) et seq.

 

                        (i)        Any employer wishing to contest the rate filing shall file a written request for hearing with the Division, received by the Division no later than 30 days after the mailing of the proposed rates by the Division.  Counsel for any employer shall enter a written appearance within the same time period.

 

                        (ii)       The contested rate hearing shall be held no later than 75 days after the mailing of the proposed rates by the Division.  Only those employers who filed a timely written request for hearing directly or through counsel will be permitted to participate in the hearing.

 

                        (iii)      Written interrogatories shall be filed no later than 30 days before the scheduled hearing date.  Responses to interrogatories shall be served on the requesting party ten days after receipt of the interrogatories.  Depositions shall be completed at least ten days before the hearing.

 

                        (iv)      Pre‑hearing conferences may be conducted informally by the hearing officer, without prior written notice if such notice is impractical, but the hearing officer shall keep a detailed log of the date, time and subject matter of all contacts by parties to the contested case.  Such log shall be made a part of the formal record in the case.

 

                        (v)       At the hearing, those employers wishing to make an unsworn statement may do so in writing or shall be heard before the taking of any sworn testimony or evidence.  Unsworn statements shall not be subject to cross-examination.  The Division shall proceed next, presenting evidence in support of the rate filing, followed by those employers desiring to present sworn testimonial and documentary evidence against the proposed rate filing.

 

                        (vi)      All parties shall have an opportunity to present proposed findings of fact and conclusions of law within ten days after the close of the evidence.

 

 

 

 

                        (vii)     The hearing officer shall render findings of fact, conclusions of law and recommended orders within 30 days after the close of the evidence, and shall serve such findings, conclusions and orders upon the Administrator, Director, and all employers and counsel

of record.  The Director shall act on the recommendations of the hearing officer by written decision within 30 days of receiving the hearing officer's report.

 

            Section 6.       Hearing Requests Regarding Timeliness.

 

            (a)       Hearing.  Upon timely request or appeal, the party filing or paying in an apparently untimely manner shall be given a hearing on the question of the timeliness of the filing or paying.

 

            Section 7.       Rules Governing Public Records Requests.

 

            (a)       Applicability. This section applies to requests for access to public records pursuant to W.S. § 16‑4‑201, et seq.

 

            (b)       Custodian.  For the purpose of any public records request, the Administrator is the custodian of all public records maintained or kept in the custody or control of the Division.

 

            (c)       Right of Inspection.    Public records of the Division shall be available for inspection by any person at reasonable times, subject to reasonable restrictions imposed by the Administrator.  No person shall inspect public records of the Division without the prior approval of the Administrator, and all requests for access to public records shall be in writing.

 

            (d)       Grounds for Denial.    In addition to any grounds for denial listed in W.S. § 16‑3‑203, the Administrator shall deny the right to inspect any information whose disclosure is prohibited by W.S. § 27‑14‑805.  The Administrator may also deny the right to inspect records of investigations conducted by the Division, investigatory or security procedures of the Division, or any investigatory files of the Division, when disclosure would be contrary to the public interest.

 

            (e)       Response to Request; Statement of Reasons; Time Limits.  The Administrator or designee shall issue a response to all written requests for access to public records within 30 days, after the request is received by the Division.  Any written request for access shall be deemed denied if the Administrator has not issued a response within 30 days after the request was received by the Division.  A party whose request for access is denied may request a written statement of reasons.  Any request for a statement of reasons shall be in writing.  The Administrator shall issue a written response to any such request, stating the reasons for denying access, including citations to legal authority, within 30 days after the request was received by the Division.  Any denial of access shall be final, unless the party seeking access files an application in district court pursuant to W.S. § 16‑4‑203(f) within 30 days after the Administrator’s statement of reasons is issued.  At the same time it is filed in the district court, any application pursuant to W.S. § 16-4-203(f) shall be served on the Administrator by certified mail.

 

 

 

            (f)        Fees.    The Division shall provide photocopies or printouts of any public record, when practical, upon request.  The Division shall charge a fee of $0.25 per page for any such photocopies or printouts.  Public records of the Division shall not be removed from the place where they are kept absent a showing of extraordinary necessity, and, upon such a showing, shall be removed only under the continuous supervision of Division personnel.  In addition to fees for copies or printouts, the Division may charge a reasonable administrative fee for services rendered by Division personnel in the supervision of any inspection or in the production of any photocopies or printouts pursuant to this subsection.

 

            (g)       The provisions of this section notwithstanding, the Division shall, upon request, provide one photocopy of the official workers’ compensation file, free of charge, to both the employee and the employer.


 

CHAPTER 10 - MISCELLANEOUS MEDICAL PROTOCOLS

 

            Section 1.       AcupunctureThe Division shall pay for acupuncture procedures only if the services are performed by a health care provider as defined in W.S. § 27-14-102(x), who is certified to perform acupuncture.  Before the Division will issue any payment for acupuncture services, the health care provider shall submit to the Division proof of certification in acupuncture from an accredited school or a school that is a candidate for accreditation.

 

Section 2.       Alcohol and Drug Testing Protocols.  

 

(a)            Nothing in this rule is intended to authorize any employer to test any employee for alcohol or drugs in any manner inconsistent with constitutional, federal or statutory requirements.

 

(b)            Nothing in this rule shall be construed to require an employer to test, or create a legal obligation upon the employer to request an employee to undergo drug or alcohol testing.  An employer's decision to post-accident test should be consistent with their substance abuse and testing policy.

 

(c)             All drug and alcohol testing, initial and confirmation, conducted in conjunction with the employer’s drug-free workplace policy will be at the employer’s expense.

 

(i)              All testing for alcohol and controlled substances will be conducted in accordance with the requirements of 49 CFR Part 40, which procedures are designed to protect the employee and the integrity of the testing process, safeguard the validity of the test results, and ensure those results are attributed to the correct employee.

 

(A)      Pursuant to 49 CFR Part 40, a covered employer may test for Amphetamines; Marijuana (cannabinoids); Cocaine (benzolylecgonine); Opiates (codeine, morphine, heroin); PCP (phencyclidine); Alcohol; or any controlled substance subsequently subject to testing pursuant to drug testing regulations adopted by the United States Department of Transportation.  In accordance with these regulations, the following are the cutoff concentrations for initial and confirmation tests:


All cutoff concentrations are expressed in nanograms per milliliter (ng/mL)

Type of Drug or Metabolite

Initial Test

Confirmation Test

 

 

 

(1)  Marijuana Metabolites

50

 

      (i)  Delta-9-tetrahydrocanna-binol-9-carboxylic acid (THC)

 

15

(2)  Cocaine Metabolites (Benzoylecgonine)

300

150

(3)  Phencyclidine (PCP)

25

25

(4)  Amphetamines

1000

 

      (i) Amphetamine

 

500

     (II) Methamphetamine

 

500 (Specimen must also contain amphetamine at a concentration of greater than or equal to 200 ng/mL.)

(5)  Opiate metabolites

2000

 

      (i) Codeine

 

2000

      (ii) Morphine

 

2000

     (iii) 6-acetylmorphine (6-AM)

 

10 (Test for 6-AM in the specimen. Conduct this test only when specimen contains morphine at a concentration greater than or equal to 2000 ng/mL.)

 

            Section 3.       Alternative Medicine.  Except as provided in Section 10 of this Chapter, the Division will not authorize or pay for any alternative medicine treatments, defined as any medical practice or intervention that lacks sufficient documentation for safety or effectiveness against specific conditions, or lacks a valid scientific base. 

 

            Section 4.       Biofeedback.  Biofeedback services shall be paid according to the edition of RVP, as published by Ingenix, Inc., as authored by Relative Value Studies, Inc., as adopted by the Administrator in Chapter 9, Section 1.  The following conditions apply:

 

           

            (a)       individual meets the definition of “injury” under W.S. 27-14-102(a)(xi); and,

 

            (b)       the services must be prescribed by the primary treating health care provider;

 

            (c)       Administration of biofeedback treatment is limited to those practitioners who are certified by the Biofeedback Certification Institute of America.  Practitioners must submit a current copy of their biofeedback certification to the Division of Workers’ Safety and Compensation.  Practitioners are bound by the fee schedule for biofeedback services.

 

            (d)       twelve (12) biofeedback treatments in a ninety-day period will be authorized when the following is presented to the Division:

 

                        (i)        An evaluation report documenting:

 

                                    (A)      the basis for the injured worker’s condition;

 

                                    (B)       the condition’s relationship to the work injury;

 

                                    (C)       an evaluation of the injured worker’s functional measurable modalities (e.g.), range of motion, uptime, walking tolerance, medication intake, etc)

 

(D)           an outline of the proposed treatment program;

 

(E)            an outline of the expected restoration goals.

 

(ii)       The injured worker’s progress must be documented in the medical records to include continued medical necessity, expected number of sessions, and ability to facilitate any further positive functional gains.

 

            (e)       No biofeedback treatments beyond the twelve (12) in subsection (d) will be authorized or paid for without substantiation of evidence of improvement in measurable, functional modalities (e.g., range of motion, uptime, walking tolerance, medication intake) and: after a file review by and on the advice of the Division’s medical consultant.

 

            (f)        With the Division’s medical consultant’s review, up to an additional six (6) sessions in a 30-day period may be authorized.  All documentation requirements apply to the additional authorized sessions.

 

            Section 5.       Biological or Chemical Exposure Injury.  The Division shall pay for the laboratory testing of any specimen collected from the body of an employee in order to determine his exposure to biological or chemical agents in covered employment, if such tests are ordered by the treating health care provider.

 

(a)          If medical emergency response personnel determine that an employee should be treated in a hospital emergency room, the Division will pay for ambulance transportation from the place of exposure to the nearest hospital.

 

(b)          The Division shall pay for hospitalization of the employee, subsequent to his receipt of treatment in an emergency room, if it is determined by the treating physician that in-patient confinement is necessary to establish the existence and extent of exposure, and to diagnose the effects of the exposure.

 

                        (i)        Except to the extent expressly provided, nothing in this section shall relieve a worker of the burden to prove the elements of an "injury" as defined by W.S. § 27‑14‑102(a)(xi).

 

Section 6.       Blood-borne Pathogen Testing and Prophylactic Care.

 

            (a)       Benefits for human blood‑borne pathogen testing and prophylactic care under W.S. § 27‑14‑501(a) shall be limited to the cost of reasonable and necessary initial and follow‑up testing and reasonable and necessary prophylactic treatment.  Benefits under this section shall be available only to workers reasonably believed to have incurred a potentially significant exposure.  Nothing in this section shall limit benefits for testing and prophylactic care to any particular covered occupation or group of covered occupations.

 

            (b)       Benefits for testing shall be limited to procedures reasonably necessary to assist in:

 

(i)              ruling out the presence of such a disease;

 

(ii)            diagnosing the disease, if it is present;

 

(iii)          identifying and testing the source of the significant exposure;

 

                        (iv)      proving or disproving that the worker’s disease, if present, meets the definition of "injury" under W.S. § 27‑14‑102(a)(xi); and,

 

                        (v)       prescribing reasonable prophylactic medical treatment during the disease's latency period.

 

            (c)       Except to the extent expressly provided, nothing in this section shall relieve a worker of the burden to prove the elements of an "injury" as defined by W.S. § 27‑14‑102(a)(xi).

 

            (d)       Nothing in this subsection shall limit benefits for an exposure to a disease that has resulted in an "injury" as defined in W.S. § 27‑14‑102(a)(xi).

 

(e)             The Division will follow current recommendations of the Centers for

Disease Control and Prevention for post-exposure prophylaxis.

 

            Section 7.       Compound Prescription Medications:

 

(a)             The Division shall pay for compound prescription medications only if:

 

(i)           a current prescription for the medication was written by the primary treating health care provider;

 

(ii)         the pharmacist submits an itemization for all ingredients, and quantities used in the compounding process.

 

            (b)      All services involved in the administration or delivery of compounded medications shall be billed under the appropriate CPT codes.

 

(c)        If compounded medications are billed through a third party, the third party must supply the Division with the information required in subsection (a).

 

            Section 8.       DME Repair or Replacement.  Requests for repair or replacement of equipment purchased by the Division shall be reviewed on an individual case-by-case basis.  Approval will be dependent upon evidence the equipment was used in a safe and appropriate manner and, due to normal wear and tear, needs to be repaired or replaced.  Evidence of improper use or abuse of equipment may warrant denial of the repair or replacement of the equipment.

 

            Section 9.       Emergency or After Office Hours Care.  Emergency or necessary after office hours care performed in a non-emergency room setting shall be coded 99054 or 99058.  These codes shall be paid in addition to other services provided during the same visit.  Emergency department services shall be billed using the appropriate CPT codes.

 

            Section 10.     Experimental Care.  Experimental care is defined as any device, drug, procedure or test used in the delivery of medical, pharmaceutical, surgical or therapeutic services that are not customary and considered investigational, unusual, controversial and/or obsolete.  The Division will neither authorize nor pay for these services except under the following conditions:

 

            (a)       The medically accepted standard of care, treatment or test would most likely be harmful to the injured worker because of other physical conditions;

 

            (b)       There are no alternative tests, therapies, or treatments available;

 

            (c)       The test, therapy, or treatment prescribed is;

 

(i)           a part of a controlled clinical trial that has been reviewed and approved by an institutional review board; or

 

(ii)         for medical devices not yet cleared for marketing, whose clinical evaluation has an approved investigational device exemption in accordance with regulations of the Food and Drug Administration (FDA); or

 

(iii)       for drugs not yet cleared for marketing, the clinical evaluation of which has been approved in accordance with regulations of the (FDA).

 

            (d)      The drug is used within current medical standards for off label indications and prescribed in compliance with published contraindications, precautions and warnings; and

 

            (e)       The health care provider submits a written request to, and obtains approval from, the Division prior to initiating any experimental test, therapy, treatment, or prescribing any experimental device or drug.

 

            Section 11.     Functional Capacity Evaluation.  A functional capacity evaluation can be requested by the Division, the health care provider, or the employer to measure general residual functional capacity to perform work or provide other general evaluation information, including musculoskeletal evaluation.  The functional capacity evaluation must be performed by a licensed physical therapist or occupational therapist credentialed or experienced in performing functional capacity evaluations, or a licensed medical doctor who practices rehabilitation medicine or physiatry and is credentialed or experienced in performing functional capacity evaluations.  The functional capacity evaluation must have objective components which measure the validity of the test results. 

 

            Section 12.     Hearing Aids.  If it has been determined through medical examination and testing that an injured worker incurred a hearing impairment as a result of a compensable injury, the Division shall pay for examinations and testing of the ear(s), and the purchase of hearing aid device(s) approved by the Food and Drug Administration (FDA), and respective supplies, in order to restore the injured worker's hearing as close to pre-injury status as possible.

 

(a)             A hearing test must be performed, and the results submitted to the Division, in order to substantiate the existence of a compensable hearing loss and to establish a base line from which to measure any potential increase in hearing impairment in the future.

 

(b)            The Division shall pay for a replacement hearing aid only if the treating physician submits a written report to the Division, specifying that a new hearing aid is required due to an increase in hearing impairment which is directly related to the compensable injury.  The report must include the results of a current hearing test, which evidences an increase in hearing impairment over the base line, or the results of the last hearing test on file with the Division.

 

(i)                   The Division shall pay for a comparable replacement only, and will not pay for an upgraded or enhanced device.

 

(ii)         The Division will not pay for a replacement hearing aid if a new device is needed because hearing has deteriorated due to aging or to a non-injury related condition.

 

            (c)       If the Division verifies that an employee's pre-existing hearing aid, not his hearing, was damaged or destroyed as a result of a work-related accident, the Division shall pay for one comparable replacement hearing aid.

 

                        (i)       The Division will not pay for a cochlear implant, tympanoplasty, or other similar surgery as a replacement for a damaged or destroyed hearing aid device.

 

                        (ii)       The Division will not pay for a subsequent replacement hearing aid if the first replacement hearing aid was lost, stolen, or broken.

 

Section 13.     Home and Vehicle Modifications.  Workers who have experienced a catastrophic injury may be eligible for home and vehicle modifications.  Catastrophic injuries include, but are not limited to paralysis, quadriplegia, severe head trauma, amputation and multiple traumas.  Requests for home or vehicle modifications will be reviewed by Division staff to determine if the home or vehicle modification meets the injured worker's needs for safety, mobility, and activities of daily living.  Only one residence and one current vehicle of a catastrophically injured worker will be modified.  Modifications must be reasonable and appropriate for the injured worker's actual functional disability and level of care. 

 

                        (i)        A home modification is defined as a physical structural change to an injured worker's permanent residence.  If the injured worker does not own the property of his residence, he must obtain and submit to the Division written permission for structural modification and proof of ownership from the property owner before modifications will be considered. 

 

(A)        The Division will not pay for any structural modifications performed prior to the Division giving written consent. 

 

                                (B)       The Division will not pay to restore the modified structure to its original condition when the injured worker ceases to reside on the property.

 

(i)         Modifications can be done at the time a home is being built, but the Division shall only pay for the cost difference between a standard home structure and the modified structure.  The modifications must be in compliance with accessibility standards. 

 

(ii)    The Division will not purchase any real estate or new or used motor vehicle for the injured worker.

 

            Section 14.     Impairment Ratings-Requirements. 

 

            (a)       Any physician determining permanent physical impairment shall:

 

                        (i)        have a current, active, and unrestricted license to practice medicine, issued by a state medical board; and

 

                        (ii)       use the most recent edition of the American Medical Association’s Guide to the Evaluation of Permanent Impairment; and

 

                        (iii)      use the instructions and complete all required measurements referencing all tables contained in the American Medical Association’s Guide to the Evaluation of Permanent Impairment.  The Division requires impairment ratings to be submitted in the same format as the forms contained within that publication; and

 

                        (iv)      A physician who is providing a physical impairment rating to an individual who has undergone multiple level fusion of the spine may utilize either the Range of Motion(ROM) and/or the DRE (Diagnosis Related Estimate) Method, or both, as the rating physician sees fit to provide the most appropriate physical impairment rating for the injured worker.

 

(v)       Impairment Rating reports will be reviewed by Division medical staff and monitored for compliance with the most recent edition of the American Medical Association's Guide to the Evaluation of Permanent Impairment, including quality, timeliness, ability to convey and substantiate medical opinions and conclusions concerning injured workers.  The Division may not pay for ratings not performed using the criteria set forth in this section and in the American Medical Association's Guide to the Evaluation of Permanent Impairment.

 

            Section 15.     Independent Medical Evaluation.  The Division may require an employee to submit to an Independent Medical Evaluation by a non-treating health care provider for the purpose of obtaining a second opinion regarding the diagnosis, prognosis or treatment of an employee's injury complaints, or to obtain a permanent partial impairment rating of the residual affects attributed to a compensable injury.  W.S. § 27-14-401(f).  The evaluation may include:  review of medical records, diagnostic studies, or other relevant materials; examination of the injured worker; consultations with other health care providers or Division representatives; and any technical preparation by office staff.

 

            (a)       The Division may request a non-treating health care provider to conduct a paper review of an injured worker's medical records for the purpose of obtaining a second opinion regarding the diagnosis, prognosis, or treatment of an employee's injury complaints.  When conducting a paper review, the health care provider conducting the review will be paid at the same rate as a physician who performed an Independent Medical Evaluation for the Division.

 

            Section 16.     Massage Therapy.     Practitioners should refer to the Wyoming Division of Workers’ Safety and Compensation Rehabilitation Therapy Utilization Guidelines for the care and treatment of injured workers, Section IV.  Massage therapy treatment will be permitted when given by a licensed massage practitioner upon written orders from the injured worker’s treating health care provider and must be under the direct supervision of a physical therapist.

 

            (a)       Massage therapy shall be covered if it is in conjunction with other therapy modalities.

 

            (b)       The physical therapist or occupational therapist must provide an initial evaluation outlining the proposed treatment program, (i.e., hot packs, e-stimulation, ultrasound, massage therapy, therapeutic exercises), the expected restoration goals, and length of treatment.

 

            (c)       The Division or consulting rehabilitation therapy panel shall allow massage therapy in the home only upon prior justification.

 

            (d)       No inpatient massage therapy will be allowed when such treatment constitutes the only or major treatment received by the injured worker.

 

            Section 17.     Nursing Services.

 

            (a)    Private Nursing or Nursing Home Care.  Medical and hospital care includes nursing home care and necessary private nursing including non‑professional home nursing services.

 

                        (i)        Nursing home care and home nursing services shall be paid only if prescribed in advance by the primary treating health care provider, who explains in detail the need and states the expected period of time such services will be required.

 

            (b)    Home nursing services shall be paid for a maximum of 12 hours per day per provider.

 

            (c)    Home nursing services required beyond 12 consecutive months shall be reviewed by the Division every 12 months thereafter to determine continued medical necessity.

 

            (d)    Disclaimer of Employment.  Persons performing nursing services in the home of an injured worker are not employees of the State of Wyoming.  The home nursing care provider or the provider's employer shall retain all responsibility for the payment of any and all federal income tax, state or federal unemployment insurance, state or federal social security premiums, and workers' compensation premiums that may be due.

 

            (e)    Initial prescriptions for home nursing services written after October 1, 1996, the following will apply:

 

                     (i)     only independent Medicare/Medicaid certified agencies may provide in-home nursing care;

 

                     (ii)    only Certified Nurses Assistants, Licensed Practical Nurses, Licensed Vocational Nurses or Registered Nurses working for a Medicare/Medicaid certified agency can provide in-home nursing care;

 

                     (iii)   if the injured worker's residence is not within a 50 mile radius of a Medicare/Medicaid certified agency, the Division may approve other alternatives.  Any such arrangement must have prior approval from the Division.

 

            Section 18.     Nutritional Supplements.  The Division shall reimburse nutritional supplements, vitamins, and non‑prescription drugs recommended by the treating health care provider, only if FDA approved and the supporting medical records document severe clinical dietary problems attributed to the compensable injury.

 

            Section 19Off-label use of Medical ServicesMedications, treatments, procedures or other medical services used for other than the approved Food and Drug Administration (FDA) indications.  These services should be medically necessary, i.e., have a reasonable expectation of cure or significant relief of a condition consistent with any applicable treatment parameter (Rules and Regulations Chapter (1), Section (4), Subsection (am)).  The Health Care Provider must document in the medical record the off-label use is medically necessary, and will submit to the Division a comprehensive review of the medical literature.  This review will include at least one good prospective, randomized, placebo-controlled, double-blind trial.  The Division will consider the quality of the evidence and determine medical necessity.  

 

            Section 20.     Payment for Medical Services and Professional Fees.  Claims for medical services provided to an employee for a compensable injury, and any associated fees charged by professionals, may be denied if not filed with the Division within 60 days from the date services were provided or charges incurred.  W.S. § 27-14-501(d).

 

            (a)       Requests for payment submitted more than 60 but less than 366 days after the date services were provided, or charges incurred, shall be considered only if the provider shows good cause for the late submission.

 

            (b)       If a claim is filed for medical services or professional fees, the Division shall audit the submission in accordance with the established fee schedules in effect on the date of service.

 

            (c)       The Division may pay for an initial examination and diagnostic tests, in cases where compensability has been denied, if the examination and testing were necessary to rule out the compensability of a reported injury.

 

            Section 21.     Physical Medicine and Restorative Services.

 

(a)          Chiropractors, physical therapists, physical therapists assistants, occupational therapists, and occupational therapist assistants may perform treatment modalities in the management of soft tissue injuries for the progressive development of strength and mobility, and to improve functional outcomes.  An initial evaluation should document the diagnoses or clinical impression consistent with the presenting complaint(s) and the results of the examination and diagnostic procedures conducted.  Subsequent visits performed require documentation of measured, objective, significant findings.

 

(b)          The Division shall pay physical therapy and occupational therapy services only if they are provided pursuant to a prescription from the injured employee’s primary treating health care provider, as defined in Chapter 1, Section 4(ac) of these Rules.  The Division will not pay for physical therapy services performed in Wyoming in violation of the Wyoming Physical Therapy Practice Act.  The Division will not pay for physical therapy and occupational therapy services performed in any other jurisdiction in violation of that jurisdiction's statutes and regulations governing physical therapy and occupational therapy.

 

(c)          The Division shall monitor claims for services and may require the provider to submit a formal written treatment plan or supplemental report detailing the medical necessity, specific goals, number of sessions and time frames for review and authorization to continue the service.  If the injured worker is not responding within the recommended duration periods, per the assessment of the provider, other treatment interventions, further diagnostic studies or consultation may be considered.

 

(i)              The Administrator adopts the Rehabilitation Therapy Utilization Guidelines For The Care And Treatment of Injured Workers and the Chiropractic Utilization Guidelines For The Care And Treatment Of Injured Workers, which will be used by the Division in its evaluation and payment of physical therapy and chiropractic claims.  These guidelines are available under separate cover through the Division.

 

 

            Section 22.     Podiatry Treatment.  Fees for services of a podiatrist will be limited to those allowed for minor surgery under the General Surgery section of the edition of Relative Values for Physicians, as published by Ingenix, Inc., as authored by Relative Value Studies, Inc., as adopted in Chapter 9, Section 1 of these Rules.

 

Section 23.     Preauthorization.  The Division pursuant to its rules and regulations may issue a determination of preauthorization for an injured worker’s nonemergency hospitalization, surgery or other specific medical care.  W.S. § 27-14-601 as amended effective July 1, 2005.

 

(a)       Treatment rendered by a health care provider to a Wyoming workers’ compensation claimant for injuries occurring on or after July 1, 2005, will be professionally reviewed and preauthorized on issues of whether proposed treatment is reasonable, medically necessary and in compliance with the Division’s case management and treatment guidelines.  Such treatment guidelines shall be predicated on relevant medical literature consistent with current evidence-based medicine, or insurance industry standards or practices, or the guidance of the Medical Commission, and shall be available upon request.  Policy establishing treatment guidelines shall be available in written format and also maintained on the Division’s Internet web site located at (http://wydoe.state.wy.us/wscd).

 

(b)       The Division will institute procedures of preauthorization and utilization review.  Policy outlining the description, medical definitions, and a required list of treatments to be preauthorized shall be developed, implemented and maintained.

 

(c)       The Preauthorization program shall be updated and revised through expansion and/or enhancement. The Division will inform Health Care Providers when treatment guidelines are expanded or modified, or there are changes in division policy or procedures.

 

(d)            The Preauthorization Process

 

(i)              Health Care Provider notification to the Division.

 

(A)                The Health Care Provider must complete the request for preauthorization review form in writing, in advance of the injured worker receiving treatment for hospitalizations, surgeries or health care requiring preauthorization and submit it to the Division by fax, mail, or e-mail.  The Provider Request for Preauthorization form can be obtained from the Division or through the Internet at: http://wydoe/state.wy.us/wscd

 

(B)                Concurrent with submission of the Provider Request for Preauthorization, the Health Care Provider must supply relevant clinical information.  This will include chart notes that document the injured worker’s history, physical examination findings, diagnostic test results, treatment plan, and prognosis. 

 

(ii)            The Division will make a determination to authorize or deny treatment as

requested per the preauthorization review form, subsequent to evaluation of the clinical information, within fifteen (15) working days of receipt.

 

(iii)          Notice of a final determination issued by the Division under this subsection shall include a statement of reasons and notice of the right to a hearing. 

 

(iv)          Any interested party may request a hearing before a hearing examiner on

the final determination of the Division by filing a written request for hearing with the Division within fifteen (15) days after the date the notice of the final determination was mailed by the Division.

(v)            Upon receipt of a request for hearing, the Division shall immediately

provide notice of the request to the appropriate hearing authority as determined pursuant to W.S 27-14-616.

(vi)          If timely written request for hearing is not filed, the final determination by

the Division pursuant to this subsection shall not be subject to further administrative or judicial review.

 

(e)       The Administrator or the Administrator’s designee will make medical coverage decisions to ensure quality of care and prompt treatment of injured workers.  Medical coverage policies and procedures will include, but are not limited to, decisions on health care services, hospitalizations, surgical procedures, medical care, pharmaceuticals, rehabilitative modalities, devices, diagnostic tests, ambulatory services, and supplies rendered for the purpose of diagnosis, treatment or prognosis. 

 

            Section 24.     Pregnancy Tests.  The Division shall pay for a pregnancy test only if it is ordered by an injured worker's treating health care provider to rule out pregnancy prior to performing a procedure or treatment considered potentially harmful to a fetus.

 

            Section 25.     Prescribed Drugs and Pharmacy Services. 

 

            (a)       The Division shall pay for prescription and over-the-counter medications only if a prescription, written by the primary care provider is valid at the time of service.

 

            (b)       When medications prescribed for a compensable injury are dispensed on an out-patient basis, the Division will cover a brand name drug with an AB rated generic equivalent only if there is a documented medical necessity for utilization of the brand name.  Prior authorization may be required for a brand name drug with an AB rated generic equivalent with the exception of certain drugs to be determined by the Division, to include specific anticonvulsant medications.  The prescribing physician must provide the Division with medical justification for brand name medications, excluding anticonvulsants prescribed specifically for seizure control secondary to work injury.

 

                        (i)        An injured worker may choose to pay the difference between the generic and the name brand product, in which case the Division shall pay only the wholesale generic price or substitute equivalent plus a dispensing fee. 

 

            Section 26.     Prescription Lenses.  If it has been determined through medical examination and testing that an injured worker incurred a visual impairment as a result of a compensable injury, the Division shall pay for examinations and testing of the eye(s), and the purchase of prescription lenses to restore the injured worker's vision as close to pre-injury status as possible. 

 

(a)             A vision test must be performed, and the results submitted to the Division, in order to substantiate the existence of a compensable vision loss and to establish a base-line from which to measure any potential increase in visual impairment in the future.

 

(b)            The Division shall pay for the replacement of prescription lenses only if the treating physician, ophthalmologist, or optometrist submits a written report to the Division which specifies that new lenses are required due to an increase in visual impairment which is directly related to the compensable injury.  The report must include the results of a current eye examination, which evidences an increase in visual impairment over the baseline, or the results of the last eye examination on file with the Division.

 

(c)             If the Division verifies that an employee's prescription lenses and or frames, not his vision, were damaged or destroyed as a result of a work-related accident, the Division shall only pay for one replacement of prescription lenses and or frames and associated examination costs.

 

                        (i)     The Division will not pay for cosmetic refractive procedures, or other laser type surgery as a replacement for damaged or destroyed prescription lenses.

 

            Section 27. Smoking Cessation.

 

            (a)       Tobacco Cessation products, including varenicline (Chantix), nicotine patches, gum and lozenges, and bupropion (generic Zyban), will be covered for appropriate clients undergoing a surgical procedure (including spinal fusion surgery), suffering from an orthopedic fracture or break, or with a wound in which healing may be negatively affected by smoking. 

 

            (b)       A maximum coverage period of six (6) months will be approved for designated therapies

 

            Section28.      Special Agreements.  The Division may enter into special agreements for services provided by, or under the direction of, licensed providers authorized to treat Wyoming claimants.  Special agreements may be made for services not covered under the fee schedules adopted by the Division, and may include multi-disciplinary or interdisciplinary programs, pain management, work hardening, and physical conditioning, rehabilitation programs, and long‑term nursing care.  The Division shall establish payment rates for special agreements based on individual cases and may establish outcome criteria, measures of effectiveness, minimum staffing levels, certification requirements, special reporting requirements, and other criteria to ensure injured workers receive good quality and effective services at a reasonable cost.  The Division may terminate special agreements and programs upon 30 days written notice to the provider.

 

Section29.      Therapeutic Injections.  Therapeutic injections such as trigger point injections, facet joint injections, facet nerve blocks, sympathetic nerve blocks, epidurals, nerve root blocks, and peripheral nerve blocks shall be compensable only if administered to anatomical sites where they are reasonably calculated to treat the compensable injury.  Prior to the first injection, the health care provider shall document in the injured worker's medical record the medical necessity for the injections, other active modalities, and instructions for the injured worker’s home exercise plan.  If additional injections are indicated, the prescribing health care provider shall provide subsequent documentation indicating the medical necessity and continued need for service in the injured worker's medical record.  Payment for injections shall be based upon the appropriate CPT code.  The Division will not pay for injections beyond a period of six consecutive months unless the health care provider certifies the medical necessity and need for additional injections in the injured worker's medical record.

 

            Section30.      Third Party Payments.   No fee shall be paid to a third party unless the place of service or point of sale is identified on each bill.

 

            Section31.      Vocational Evaluation.  The Division may require an injured worker to participate in a vocational evaluation to determine his future employment potential, after he has applied for a permanent award, including permanent partial disability, loss of earnings for injuries occurring before July 1, 1994, and permanent total disability.

 

(a)             A vocational evaluation must be performed by a qualified vocational evaluator.

 

(i)       An evaluator is considered qualified if he possesses: a B.A. or B.S. degree and three years experience completing vocational evaluations; a Master's degree in Vocational Rehabilitation; or national certification as a vocational evaluator (CVE).

 

(b)       The vocational evaluation report must be submitted in the format determined by the Division.