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The states with the most workrelated fatalities for trucks are also the states that are cutting back workers39 comp benefits

Is workers' comp under attack?

Nov. 18, 2016
A recent infographic making the rounds of the web has some driver advocates worried. It shows that the states with the most work-related fatalities for trucks are also the states that are cutting benefits for those workers.

A recent infographic making the rounds of the web has some driver advocates worried. It shows that the states with the most work-related fatalities for trucks are also the states that are cutting benefits for those workers.

"Is it a coincidence?" asks attorney Dean Dominick, partner at Katherman Briggs & Greenberg, LLP in York, Pennsylvania, who placed the infographic and an analysis on his blog. "I think that if you look at the states that are involved, a lot of them are fairly large states, fairly populous states that have a lot of workers in addition to truck drivers coming through their states. There has been a national movement over the last several years to reduce what's called 'workers' compensation exposure.'" 

He adds: "In my opinion, one of the biggest problems that we have is that the insurance industry and the pro-business industry have very strong lobbying groups. Employees do not."

Dominick notes that some states have been successful in putting caps on the length of time that people can receive benefits. States also try to limit the nature of injuries that are covered especially trying to exclude repetitive trauma injuries as opposed to an actual acute trauma.

"An example for a truck driver would be an elbow injury – like a lateral epicondylitis – tennis elbow, which could occur from repetitively turning the steering wheel," he says.

Still another technique to reduce benefits is limiting the choice of physician that an injured worker can see. "In Pennsylvania, for example, for the first 90 days, if the employer has a list of designated physicians, the employee [must see that health provider] and if they don’t, worker’s comp doesn’t pay the bills. There’s legislation under foot in Pennsylvania to extend that to 180 days. That would mean for six months the employee has no choice in who they get to see."

Still another method for employers to limit their workers' comp exposure is to classify drivers as independent contractors instead of employees.

"Instead of having them be in the workers' compensation system, they arrange for what's called an 'occupational accident policy.' It's a group policy, and so then the drivers, who are called independent contractors, but are often misclassified, get certificates of coverage, but it's a policy that doesn't provide the level of benefits you get under workers' comp," says Joshua Haffner, a Los Angeles-based lawyer specializing in personal injury, insurance bad faith, class actions, and other civil and business litigation. "It has a really pernicious provision in that if you try and assert your employee status and make a workers' comp claim, you either forfeit the benefits under the occupational accident policies, or they're suspended… I'm seeing a lot of this kind of thing."

A Labor Department report states that many state systems are leaving workers unprotected.

Not everyone agrees that the cards are being stacked against workers. Kim Fernandes, a Tallahassee, FL–based attorney for firm Kelley Kronenberg says that in her state, "there are groups out there, interest groups that have been trying to challenge workers compensation laws saying that they don't give injured workers enough benefits." She notes that a recent Florida case, which would ask that all states workers comp laws be compared, was brought before the U.S. Supreme Court but they declined to hear it. This case was supported by unions, employee groups and personal injury groups.

She says Florida workers' comp laws can sometimes be unreasonably broad. "Where else in the nation are you going to have your cancer treatment paid for if it's getting in the way of your knee that you injured at work getting treated under workers comp? Because that's how broad Florida benefits can go."

All sides agree that the issue of workers' comp is exacerbated for interstate carriers because laws are state-by-state and not uniform. In fact, a Department of Labor report released in October questioned whether the federal government should provide supervision. The report said that one area that deserves exploration is "whether to increase the federal role in oversight of workers’ compensation programs, including the appointment of a new National Commission and the establishment of standards that would trigger increased federal oversight if workers’ compensation programs fail to meet those standards."

The Labor Department report maintained that many state systems are leaving workers unprotected. "Some state legislatures continue to attempt to reduce workers’ compensation costs, and proposals for statutory amendments that restrict workers’ benefits or access have become increasingly bold. Notably, there have been legislative efforts to restrict benefits and increase employer control over benefits and claim processing, most dramatically exemplified by the opt-out legislation enacted, and recently struck down by the state supreme court, in Oklahoma and considered in Tennessee and South Carolina, among other states."

Increasingly, workers left with large medical bills not covered by workers' comp are seeking payment from other federal programs. "Despite the sizable cost of workers’ compensation, only a small portion of the overall costs of occupational injury and illness is borne by employers," the report stated. "Costs are instead shifted away from employers, often to workers, their families and communities. Other social benefit systems – including Social Security retirement benefits, Social Security Disability Insurance (SSDI), Medicare, and, most recently, health care provided under the Affordable Care Act – have expanded our social safety net, while the workers’ compensation safety net has been shrinking. There is growing evidence that costs of workplace-related disability are being transferred to other benefit programs, placing additional strains on these programs at a time when they are already under considerable stress."

The cost of uncovered work-related medical care is so high, the report noted, that some workers have become impoverished because of it. "…working people are at great risk of falling into poverty as a result of workplace injuries and the failure of state workers’ compensation systems to provide them with adequate benefits."

About the Author

Larry Kahaner

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