Workers’ Compensation Issues at a National Level

From attacks on exclusive remedy, to rapidly-evolving presumption laws, there are several workers’ compensation issues that should be on your radar. In this session at the WSIA 2020 Annual Conference, Robert ‘Buz’ Minor, Executive Director of the National Council of Self-Insurers (NCSI), shared national trends and their impact on the industry.

Attacks on Exclusive Remedy
The “Grand Bargain” refers to the creation of workers’ compensation, which detailed that employers would be required to cover work-related injury costs. A 2015 article from ProPublica, called, “The Demolition of Workers’ Comp,” accused that states were slashing benefits, denying injured workers when they need it most, and shifting the costs of workplace accidents to taxpayers. According to Minor, this article was largely anecdotal, however, it thrust workers’ compensation in the spotlight and put it in the cross hairs. This included an increasing number of court cases asking for workers’ compensation to cover disability unrelated to the work injury, resulting from issues like pre-existing conditions. The industry is currently defending against a growing number of these cases.

State Efforts
The system is constantly being attacked by trial lawyers. There was recently a case in Florida where a widow collected workers’ compensation, then sued the employer for liability, and the jury awarded her over $9 million additional cost. That, ultimately, was overturned, but many opportunistic lawyers are taking a similar approach. Arguments are constantly being made against the system. To try to combat this, states are beginning to list their various workers’ compensation laws and limitations in their AMA guides.

Opt Out
Texas Opt-Out is a way that an employer can set up its own workers’ compensation system and provide benefits through that system, opting out of the state’s system. There are a number of states that have introduced legislation to join Texas in opt-out alternatives to workers’ compensation, but nothing has come of it yet. Oklahoma did try it and failed. There are a few other methods available – group self-insurance and self-insurance group employer organizations. These are organizations that charge employers a fee to pay the employer’s claims for them. They are not regulated by a Department of Insurance, nor do they have statutorily set reserves, which frightens many in the self-insurance arena.

Occupational Cancer Legislation
The Firefighters Unions are pushing this legislation, which would create a presumption for firefighters that any form of cancer would be covered under workers’ compensation, regardless of if that cancer was a result of work exposures. The presumption may be rebutted if the employer can prove that the cancer was not a result of the job, but that is very difficult to prove. In addition, most do not want to testify against our first responders, so many do not contest it.

PTSD Presumption
In the past, mental/mental cases were not included in workers’ compensation. This term refers to mental issues related to a physical injury. Part of the fight on behalf of the first responders is that they should be able to receive benefits for PTSD, regardless of physical harm, and laws are starting to change accordingly. Some require that the trauma must occur within a specific time after the incident.