Constitutional challenges in Oklahoma and Florida
In a landmark decision, the Oklahoma State Workers’ Compensation Commission has ruled the state’s 2013 opt-out law unconstitutional. Dillard’s employee Jonnie Vasquez was the first injured worker whose case reached the commission after appealing her employer’s denial of benefits. Vasquez and her attorney argued that her company’s self-designed benefit plan violated her rights to equal protection, due process, and open access to the courts. "The opt-out plans put all power in the hands of the employer, with no independent review ever of the employer's decision,” explained Vasquez’s attorney Bob Burke, “If the worker does not accept the settlement [offered by their employer], all benefits are terminated." The Commission agreed with Vasquez, stating that the alternative benefit plans written by opt-out employers create a “dual system under which injured workers are not treated equally.” The decision stressed the fact that opt-out employers have the power to define what is and is not a compensable injury, allowing them to cut off access to benefits for many injured and ill workers.
The case will likely go to the state Supreme Court, which is also considering a case brought by injured worker Damian Smith, who has challenged the constitutionality of Oklahoma’s opt-out law because it prevents a judge from reviewing all medical evidence in determining benefits and defers disability payments for every week worked, essentially punishing workers for returning to work early. Both cases hold great importance for injured workers’ rights and will have a significant effect on the future of opt-out laws in Oklahoma.
Meanwhile, the Florida Supreme Court has refused to hear the case that last year ruled the state’s workers’ comp system unconstitutional because its benefits were so inadequate that it did not constitute a reasonable alternative to a civil lawsuit. The case was thrown out on a technicality, but the Supreme Court will hear another case this spring that challenges the law’s constitutionality on similar grounds.
Lawmakers take a closer look at how comp system affects injured workers
After years of state workers’ comp deforms that have curtailed injured workers’ rights, calls for national action appear to finally be growing. Following ProPublica’s investigative series last year, the National Conference of Insurance Legislators, an association of lawmakers with considerable influence over insurance-related bills in their respective states, has launched an inquiry. And in January Senator Bernie Sanders and nine other Democratic lawmakers penned a letter to the U.S. Secretary of Labor calling for renewed federal oversight of state workers’ comp legislation in order to ensure protection of injured and ill workers’ rights.
The last time the federal government took an interest in workers’ comp was in 1972, when Nixon’s National Commission on State Workmen’s Compensation Laws found that, across the board, states failed to meet workers’ needs. The Commission made over 30 recommendations to states, including increasing the maximum weekly wage replacement and removing any limitations on length of time or amount of coverage for medical treatment. Fear of federally mandated standards spurred most states to take some action, but many of the Commission’s recommendations were never taken up, and in the past three decades pro-business reforms have further eroded these protections. While the need for consistent standards that hold states accountable is clear, some argue that a new Federal Commission wouldn’t be the answer in the current political climate. Professor John Burton, a workers’ comp expert who chaired the 1972 Commission, instead suggests that third-party organizations with “an established record of objective studies in the field” lead the way.
Meanwhile, the workers’ comp industry has echoed lawmakers’ call for a national conversation, scheduling a summit for early May. Robert Wilson, who is set to moderate the meeting, says it will focus on deep and open discussion of the problems facing the industry. Yet the summit’s participants appear to be largely industry insiders, allowing workers and worker advocates no more than token representation.
New York workers launch Workers' Protection Coalition
A new coalition of unions, injured workers, workers’ centers, law firms, and community-based organizations has launched in New York State to advocate for policy changes in Albany that protect the rights of injured workers. The coalition is organizing opposition to proposals made in Governor Andrew Cuomo's state budget that would further erode injured workers' rights to health care, adequate income and due process. As reported by the New York Workers' Compensation Alliance, the proposals include reducing insurance companies' accountability for paying claims; changing calculations of workers' wages in a way that would further reduce already inadequate payments for many workers, especially hourly workers; prohibiting workers from seeing a doctor of their own choosing for 120 days; and pushing workers out of in-person hearings with the same judge into video hearings with far-flung judges. Many of the proposals come directly from the Business Council's 2016 Legislative and Regulatory Agenda. See our "Take Action" section in the sidebar to get involved in the Coalition's advocacy efforts.
Tyson and other big corporations push for anti-worker reforms
A look at national meatpacking giant Tyson provides a troubling picture of the control that big corporations exert over workers’ comp policy. Tyson, which operates in over 20 states, uses its influence with lawmakers to push legislative changes that increase employer control over medical care, limit which injuries are compensable, and raise workers’ burden of proof. Its tactics include creating new legal arguments for reducing benefits, using its economic leverage to pressure lawmakers, and even convincing officials to appoint or remove workers’ comp judges. This level of corporate meddling destroys all notions of fairness, leaving injured workers trapped and powerless in the system that is meant to protect them.
Insurance companies seek to heighten surveillance on workers
American International Group (AIG), one of the biggest workers’ comp insurers, has made a major investment in a company that manufactures trackable technology, planning to eventually use wearable tracking devices to monitor employee movement. While the new technology is touted as a health and safety innovation, AIG and other insurance agencies say their main hope for the product is to “boost profits and cut costs.” This means that information gathered from the devices - including location and health data - would be used in much the same way as drug tests, private investigators, and other invasive surveillance practices aimed at discrediting injured workers and undermining their claims. While the reality is still a ways off, wearable tech would represent a disconcerting step in surveillance of employees and would pose a serious affront to workers’ rights to dignity and privacy.
Inadequate benefits leave families financially vulnerable
A new report by workers’ comp columnist Peter Rousmaniere finds that even in the best of circumstances, workers’ comp benefits are too meager to protect injured workers against financial instability or disaster. The report analyzes the “shortfall” in income created by benefit caps and uncompensated days of missed work, showing how this income gap affects household finances. The conclusions are disturbing: a household where both spouses earn average or above salaries would quickly lose its financial cushion, while a family in which one spouse works only part-time or has a low-paying job would be unable to afford even a modest household budget. As claimants’ attorney Doug Graoul testifies, injured workers who must rely on wage replacement benefits for an extended time often experience devastating losses, including loss of home or vehicles, bankruptcy, and divorce. As the article points out, the workers’ comp system was originally designed to pay for itself. It is clear that it no longer does so, leaving injured workers and their families to shoulder the burden.