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Cathy Stanton, WILG President: Emerging Trends in Legislative Attacks on Injured & Ill workers

In 1910 Crystal Eastman compiled and penned “Work Accidents and the Law.”  This document presented the problems inherent in the then-current system of negligence-based compensation in light of the cost to human capital and highlighted the benefits of a workers’ compensation program as preventative in nature.  This work along with the tragic aftermath of the Triangle Shirtwaist Factory Fire in 1911, which killed 146 garment workers, is credited with changing business, labor and the public’s attitude towards workers’ compensation and employee safety.   Soon thereafter, most states enacted workers’ compensation laws.  This was known as the great compromise – workers lost their ability to sue their negligent employers in exchange for the employers’ agreement to pay prompt medical and indemnity benefits.  Unfortunately over the next decades many of the promises made to the injured worker were broken. 

When the Occupational Safety and Health Act was enacted in 1970, a bipartisan National Commission was created thereafter to study workers’ compensation laws and concluded that most were inadequate and inequitable.  The commission made dozens of recommendations and set 5 goals – broad coverage for employees; substantial protection against interruption in income; sufficient medical coverage and rehab for employees; encouragement of safety and an effective system of delivery of benefits and services.  The immediate result was that a number of states made improvement in their systems.  However this progress did not last.

The Workers' Injury Law and Advocacy Group (WILG) was formed to represent the interests of millions of workers and their families who, each year, suffer the consequences of workplace injuries and illness.  To that end, WILG has been tracking trends throughout the country which would negatively impact existing Workers’ Compensation benefits and has identified 10 emerging trends:

1)  Opt Out provisions which would permit qualifying employers to opt out of the state’s mandatory compensation system and allow employers to place limitations on the types of benefits covered.  While this provision was recently defeated in Oklahoma, we anticipate future battles in a number of states including Colorado and Illinois. 
2)  Eliminating the liberal constructionism precedent, which stood for the legal presumption weighted toward the injured worker.  Some states, including both Mississippi and Louisiana, passed bills which overturn this precedent.
3)  Post-injury drug testing  - Mississippi now allows employers to require alcohol and drug tests if there is a claim for compensation.  
4)  AMA Impairment Guides 6th Edition - Despite the AMA’s own statement that its guidelines should not be used to determine injured worker benefits, many states including Illinois and Montana are now relying on these guidelines in their workers’ compensation legislation.
5)  Medical fee schedules frozen or reduced - Illinois recently reduced their medical fee schedules by 30% for doctors and hospitals.  We anticipate a similar bill proposed in Virginia.  
6)  Restricting the choice of treating physician by allowing the employer to choose the physician - by limiting the client as to his choices, or by raising the standard of proof for the injured worker in order to switch physicians.     
7)  Arbitrary capping of benefits – Montana enacted a 5 year cap on medical benefits while other states have submitted legislation which capped indemnity benefits based upon age of the case or age of the injured worker.    
8)  Medical treatment guidelines, which set certain standards of treatment for particular injuries and completely remove medical decision making from the patient and physician.  
9)  Mental injures in the work place – A bill was recently defeated in Maine which would have denied permanent workers’ compensation coverage for an emotional injury.
10) Independent medical review process, which moves the decision making from the workers compensation appeals board to an independent medical review process with no ability to appeal.    

The outcome of these trends would result in further erosion of the benefits of the injured worker. These trends clearly are contrary to the findings and recommendations of the National Commission made all those years ago.   All workers need to be aware of these trends because the likelihood of legislation being introduced in their state against their interests is strong. Employee immunity has remained untouched but workers benefits are consistently under attack as a result of the collective lobbying efforts of the insurance industry and large corporations.   Unfortunately the great compromise is turning out to be one sided as workers are forced to endure multiple obstacles and hurdles to be entitled to fewer and more restricted benefits.   

The good news is that we have had enough.  We are mobilizing and building coalitions that have the ability to spread the word and reach the masses.  WILG has been able to assist 30 states in their workers’ compensation battles.    Our collective groups don’t have big pockets but what we have is the passion to fight for justice and equity.   There will always be battles to fight but we will win if we work together, disseminate truthful information and provide useful tools to those who fight. 

This piece is also posted on the Workers' Injury Law and Advocacy Group (WILG) website at http://www.wilg.org/ as a Message from WILG President.

Cathy Stanton is President of the Workers' Injury Law and Advocacy Group (WILG).