Congressional Action on Workers’ Compensation

From coast to coast, the patchwork of state workers’ compensation systems continues to be under constant scrutiny for change. The problems seem global in characteristic as the frustrations continue to rise. The fate of the entire system may result in the effort to enact or defeat legislation to embrace a new national commission on workers’ compensation.

The States universally enacted Workers’ Compensation in 1911 in an effort to replace civil litigation with an administrative system. The approach was to provide a remedial system to injured workers in a summary manner while providing a cost effective approach for employers. Despite the efforts to reduce benefits and limit access States are struggling to maintain the system in one fashion or another. Rumors are spreading that New York, a former industrial jurisdiction, may join the list of radically modifying their system.

The once touted as a “no fault” system, the nation’s workers’ compensation has been besieged by efforts to assert more restrictive requirements for benefits. Medical delivery has stagnated in a complex world of etiology and evidential proof of occupational claims. The cost of soaring medical care, once shifted easily to collateral health insurance companies and the Social Security system, has been met with convoluted reimbursement efforts. Large corporations and public entities that in the past were able to provide an additional stream of revenue to injured workers are now rapidly drying up and or become non-existent under bankruptcy laws. State governments, that maintain the administrative system, are now facing a monumental shortage is revenue and are closing down operations and converting some for criminal and economic sanctions to merely benefit the general state revenues. The few remaining second injury funds have become insolvent and the future remains bleak as the premiums committed to finance these agencies and programs become depleted.

On January 22, 2009, Representative Joe Baca, a Democrat from California, introduced legislation (HR635) to establish a second National Commission on State Workers' Compensation Laws [Commission]. The first Commission was established under the Nixon administration in accordance with the Occupational Safety and Health Act. The new legislation that is now supported by representatives of injured workers lacks co-sponsors. Opposing the legislation is a long line of Industry based employers including the Americans Manufacturing Association and the National Chamber of Commerce.

John Burton, the former chair of the 1971 Commission, in a recent interview, commented that many of the present systems do not even comply with threshold recommendations of the original Commission and that many of the present programs face some serious challenges.

Patrice Woeppel, Ed.D., author of Depraved Indifference the Workers' Compensation System, has called for a single payer medical system to embrace both work and non-worker related injuries. By allowing the employer and insurance carrier to control the medical care she indicates, results in "restricting treatment to the cursorily palliative" or delay and denial of treatment to the injured worker. Additionally medical plan administrative costs of duplicative and wasteful.

As the national health care debate continues and the final legislation unfolds, the workers’ compensation medical delivery issues and wage replacements for temporary and permanent disability may become incorporated into direct or ancillary legislation. A second Commission, in one form or another, aimed at nationalizing the workers compensation system, may indeed become a reality.