Workers'
compensation, traditionally called workmen's
compensation, is the name commonly applied to Federal and State statutes
that give protection and security to workers and their dependents against
injury, disease, or death occurring in the course of employment. The statutes in general establish the
liability of an employer for injuries suffered by workers, and benefits which
are generally financed by insurance bought by the employer. It usually includes hospital and other
medical payments and compensation for loss of income.
During
the 19th century U.S. employers, following English common-law tradition,
contended that the hazards of a particular job were a risk that the employee
assumed when he or she went to work.
Their position was further bolstered by the Fellow Servant rule,
which held that an employee could not sue an employer for negligence if the
employee's injury was caused by the negligence of a fellow worker. In the late 19th century an
enlightened view toward responsibility for occupational injury began to reshape
our laws. This was generally true for
most of the industrialized nations.
Legislative History
q
1908- The United States Congress
abolished the Fellow Servant rule for railroad workers when it passed
the National Employers' Liability Act.
q
1911- Wisconsin passes a worker’s
compensation act, later upheld by the supreme court. This is considered to be the nation’s first social security
program. Other States soon followed.
q
1915- The
New York Court of Appeals upholds a state workmen's compensation law signed the
previous year.
q
1916- U.S. Congress passes the Workmen's
Compensation Act, protecting some 500,000 federal workers in the event of
disabling injury.
q
1911- Washington State recognizing
that “the welfare of the state depends on
the welfare of its industries and even more upon the welfare of its wage
earners” enacted a no fault workmen’s compensation law (RCW 51.04).
Facts:
Washington
State provides insurance for its industries with a non-profit fund administered
by the Department of Labor & Industries.
All businesses except those having enough assets to pay claims out of
their own pockets, pay premiums to provide the income. Only 400 out of the 155,000 employers in
this state qualify for self insuring under existing net worth and safety
program requirements. Over 99% are
purchasing their required insurance from this department. That means 70% of the state’s workers are
covered by the fund and therefore counted for premium calculation. Those numbers allow the department to assign
fair rates that reflect the hazards and potential for loss in each industry
while spreading the cost among a large employer base. One of the benefits of this traditionally high percentage has
been maintaining low premiums for participants at all levels of risk. In fact independent studies have shown that
our state has the highest benefit to lowest cost ratio in the country. It’s attributed to 3 factors:
1.)
The
majority of workers are covered by one fund;
2.)
That
fund is administered by a publicly accountable government agency rather than by
independent, private, insurance companies.
3.)
The
incentive program rewarding improvements in workplace safety with premium
refunds is effective as is. It’s one of
the most efficiently run and cost effective programs in the country.
Two
of the major players in the dynamic would like to change the status quo at the
expense of working families. The
insurance industry lobbies each session for entry into the state’s “market”. Their motivation is profit, not service to
the intent of our law “sure and certain
relief for workers, injured in their work” (RCW 51.04).. Evidence presented by research of states
where privatization has been allowed shows the insurance companies made their
profit by decreasing benefits, increasing denials and raising premiums.
Business
Interests are not satisfied with having the lowest premiums in the country nor
the fat rebates from the incentive program called “Retrospective Rating.” They lobby to further reduce the cost of
doing business by taking control of the claim process. “Retrospective Reform”, as they call it
would have company doctors determine the nature and extent of injuries along
with company vocational rehabilitation councilors making employability assessments. It also seeks to allow a company to close
claims independent of Labor and Industries review. Companies are profit motivated.
A partnership with chosen doctors and councilors would only endeavor to
profit from lower premiums resulting from limiting and denying claims. It is clear to us that Labor &
Industries is the only 3rd party motivated solely by the intent of
the law; “sure and certain relief for
workers, injured in their work.”
A
perusal of “A Guide to Industrial Benefits” published by Washington State
Department of Labor & Industries informs that we are to be provided if
needed with the following:
1.)
medical
care
2.)
wage
replacement benefits
3.)
property
damage
4.)
travel
expense
5.)
return
to work assistance with same employer
6.)
vocational
services for return to work for another employer
7.)
changed
vocation
8.)
permanent
disability
It
reads as if a comprehensive safety net has been provided for workers and their
dependents. The experiences of our
Sisters and Brothers injured or sickened on the job have proven that there are
some big holes in our system which need to be addressed.
Take
wage replacement benefits for example.
The employer has the right to protest any claim accepted by Labor and
Industries. The Department’s decision
on the protest can then be appealed to the Board of Industrial Insurance
Appeals. Time loss benefits are
suspended until decision is rendered.
The entire process of protest and appeal can take 18 months or more. Compare that time line with a statistic
provided by the AFL-CIO’s Department of Education.. The majority of working class families have less than 3 months
savings to keep them housed, fed and clothed if they lost their source of
income. The number of claims filed influence a business’s “Experience Rating”
and thus its premium. Experience rating
is a factor applied annually to the median premium cost for each company within
comparable industries. It’s similar to
the safe driver points auto insurance companies offer. The more claims that are filed against a
company’s policy the higher the next year’s premium. Businesses are motivated to protest and appeal. Don’t let the profit motive put injured or
diseased workers and their families out on the street.
Another
example is the “Return to work assistance with same employer” service and
“vocational services for return to work for another employer”. Workers, determined as able to return to
work with limitations, are placed in a modified or new job classification with
the same employer they worked for at the time of injury. The claimant has to be able and the employer
has to be willing. An employer has the
right to refer a worker they deem unable to return to work with assistance to a
vocational rehabilitation counselor.
That councilor will assess the injured workers ability to be gainfully
employed elsewhere. That’s called the
employability assessment. The standard
of measure used is the definition of gainful employment. Gainful
employment is defined as a job that pays the Federal minimum wage. In 1985 a statutory definition of
suitable gainful employment which implied that vocational services were to
achieve pre injury vocational status was repealed. Its replacement implies any work for wages without considering
the wages of injury. We have worked
very hard to gain a position recognized as contributing members to this
society. We are compensated with family
living wages. An on the job injury or
disease should not rob us of our self-esteem.
Another
problem comes up when wage calculations for injured workers are made.
Benefits
on prevailing wage jobs and other work can be received by 2 means. One way is for the benefits to be paid into
trusts for that employee. The other is for benefits to be included in the wages
paid on the employee’s check. This
entitles the latter to more financial aid than the former. The former is denied the ability to maintain
their standing in their trusts. This is
unfair and needs to be changed. Workers
who by choice have decided to organize and join or form unions should not be
penalized while those who haven’t are rewarded.
We
would like to see legislation passed which takes care of the following issues:
1.)
Legislation
requiring continuation of time loss benefits during protest and appeal.
2.)
Legislation
which will raise the employability standard to 95% of wage at time of injury.
3.)
Legislation
which allows employer contributions to pension and health trusts to be included
in worker compensation calculation’s.
4.)
Employability
standard in the vocational assessment, which sets the goal for returning
victims to jobs with comparable wages.
We are opposed to any proposal, such as Retrospective Reform, intended to weaken the role of The Department of Labor & Industries as the 3rd party administrator of Worker’s Compensation.
This Position Paper was produced by the Political Action Committee
of UA Local 32.
Send all Questions and/or Comments to Wayne Stedman,
UA32PAC Chair by clicking on this link.