Monday, May 4, 2015

Legislative Attacks Against Workers

Earlier this year, ProPublica and NPR teamed up to provide an in-depth series on the state of workers' compensation in our country. Called "Insult to Injury," the series highlighted how legislative attacks that undermined the fundamental protections for injured workers in our workers compensation system have failed to provide them with the care they need and denied them access to their fundamental rights. These attacks have cost workers their homes, their health, their ability to recover from injuries and return to work, and - in too many cases - their lives. They remove incentives for employers to budget for safety and obey workplace safety laws. Finally, they shift the burden of the injuries to the workers and taxpayers through our unraveling social safety net to the tune of tens of billions of dollars a year across our nation.    

Below are highlights from the series and other recent studies that we want to share with you.

Read the whole series here.


This graphic is color-coded to show the best (green) and worst (red) states for workers.
So-called "reforms" have been enacted in 33 states. From limiting compensation to swapping prosthetics for hooks, states have been systematically dismantling workers' rights across the board. What else stands out is that Washington is still one of the best states for workers, despite several attempts in the Senate this session to repeal our rights, including: 
  • Occupational Disease (SB 5509) - Virtually eliminating occupational disease claims by creating new burdens of proof for workers who suffer occupational diseases, and giving new legal arguments to employers that provide them with near immunity for any illnesses or condition that might possibly be partially caused by any non-work factor, or even for claims arising in multiple workplaces over the years, while also dramatically restricting the time frame for filing claims.
  • Wage simplification (SB 5510) - As introduced and moved from committee, this bill would have "simplified" wage benefit calculations by simply lowering the amounts and the percentages of wages that the wage loss is based on. This bill also overturned a unanimous Supreme Court decision requiring that the value of health benefits be recognized and included in those calculations.
  • Overturning Tobin (SB 5508) - Overturning a Supreme Court decision in the Tobin case. The bill would allow employers and the state to confiscate percentages of injured workers' (and their survivors') court awards for pain-and-suffering and loss of consortium claims in wrongful death and other workplace injury cases, even though no benefits were paid for those damages. This also runs afoul of a case in the US Supreme Court, where Justice Scalia said the state does not have a right to take money away for benefits they never paid (Ahlborn.).
  • Group Self-Insurance (SB 5331) - Legalizing the risky practice of multiple employers banding together to self-insure. In other states, such groups have become insolvent and passed major costs onto other employers and/or abandoned injured workers. This also gives employers the ability to handle their own claims with virtually no oversight and where every dollar saved is a dollar in their pocket.
  • Reporting Injuries (SB 5576) - Dramatically shortening the statute of limitations for filing claims and requiring that claims be filed with the employer, which opens the door to intimidation to discourage claims. This could also eliminate claims if the employer filed the notice of claim before the worker, even if the worker is, say, in critical condition or hospitalized.
  • "Three-Way" (SB 5420) - Allowing the private sale of industrial insurance in Washington, a concept overwhelmingly rejected by voters by a 60-40 count in I-1082 in 2010, and that failed in every county and legislative district.
  • Structured Settlements (SB 5513) - Lowering the age limit for lump-sum buyouts from 50 to 18, and eliminating certain protections for workers in the current law.
All of these bills aimed to cut employers' rates by: a) having dramatically fewer injured workers be able to run the gauntlet and access workers comp benefits, and b) cutting the benefits for those who do. 

WSAJ is very proud of our work defending this system over the years and very pleased with the Senators who listened to us and rejected these attacks. This year numerous Republicans joined a unanimous Democratic caucus in rejecting every single one of these draconian measures, and instead created a fairly modest workers' comp package. WSAJ appreciates those Senators of both parties for standing up for injured workers and keeping our system strong.  


Graphic via The Stand
While reduced benefits pile medical bills on injured workers who are unable to return to work, plummeting them into poverty, insurance companies are making record profits. In 2013, insurers had their most profitable year in over a decade. At the same time, employers are paying the lowest rates for workers' comp insurance since the 1970s, and some of the lowest costs are in Washington state. 
Supporting workers is inexpensive for employers, but insurance companies focused on their corporate profits continue to claim that cutting benefits helps small businesses.

Here in Washington, we do not allow private insurers to sell insurance and loot hundreds of millions of dollars in profits. Instead, we reinvest this money in our insurance funds. Using investment returns, we maximize financial stability, keep premiums lower for employers, and keep benefits fairly strong and accessible for injured workers. Washington is also the only state in the nation where workers pay a share of the premium, further lowering employer costs, and creating ownership and partnership in our workers' comp system. While we are far from perfect, this study shows Washington does have a better way. It also serves as a warning of why we don't want to start down that other road.


Photo via GeekWire

Workers compensation is often referred to as an "historic grand bargain" in which workers gave up their right to sue their employer for the "sure and certain" relief of workers' compensation. Employers received immunity from lawsuits in exchange for providing more limited but certain support for workers injured on the job. The ProPublica studies referenced in this edition shows how that promise is being unraveled. Now, not satisfied with tearing down the "sure and certain" relief in so many states around the union, a group of employers has banded together and seeks to totally renege on the historic bargain altogether.

Mother Jones details the lobbying efforts emerging to tear down the workers' comp system and replace it with employer-provided "benefit programs." The catch? The employers write the rules, pick the doctors, handle the disputes, determine the scope of coverage (or lack there of), and construct the whole system in their own interests, not their workers'. Two states have already enacted this travesty, and the results are horrid for workers.

The big question for Washingtonians is why Nordstrom is joining this sordid effort and disreputable group.  A generation ago, Nordstrom was the gold standard for customer service and was highly desired and rated as an employer. What changed? These efforts show this may not be our parents' Nordstrom. We hope they don't join Washington Mutual as a local company that has built good will for generations, only to suck it away for short-term profits. 

Please, say it ain't so.   

ProPublica's ground-breaking study shines light on what we already hold to be true: that denying benefits to workers helps no one but insurance companies. Protecting our workers has been a foundation of our country since the Industrial Age, and we will work to keep it that way.

**Thank you to the Washington State Association for Justice for permission to reprint this article.

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