Legislatures across the country are eagerly making changes to workers’ compensation programs that will have a negative impact on workers’ rights and their ability to receive quality care and treatment for work-related injuries. Arguing that workers’ compensation reform is necessary to protect state budgets, these legislative changes are removing many of the protections and rights that workers depend upon to cover them should they be injured in the course of their job related duties.
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In Texas and Oklahoma, legislators have passed measures which allow employers to opt-out of the state workers’ compensation programs. Thus far, 120 companies have been granted permission to opt out of state workers’ compensation programs and set up and administer internal workers’ compensation programs. The quality of these programs varies widely and there is little to no oversight of their operations. Furthermore, these internal programs are rife with onerous restrictions that are designed to not only deter claims, but reduce the overall liability of the company.
Among these restrictions, claim filing deadlines can be as short as the end of a worker’s shift which is far shorter than the filing deadline for state administered programs. For instance, Illinois’ workers’ compensation program currently requires workers to notify their employer within 45 days for most injuries, or 90 days for radiation related injuries.
Many also feature a severely limited list of doctors workers may see to assess and treat their injuries. Worse still, companies have wide discretion in determining which injuries are work related, which injuries and conditions are covered, and how long after an injury a company will provide benefits. In many cases, these programs cut employees off in two years or less. This is creating a situation wherein workers are very much at the mercy of the benefit plans their employer may offer.
Moreover, the burden of proof for filing claims is higher than those of state administered programs; and many companies enrolling in these opt-out programs require employees to sign arbitration clauses in their employment contract. These onerous filing requirements and arbitration clauses severely limit a employees right to sue should the company determine not to cover a workplace related injury.
These changes in Oklahoma and Texas save these companies a considerable amount of money by shifting the burden of care to taxpayers who are then forced to foot the bills for treatment, rehabilitation, and long-term care via Medicaid, Medicare, and SSDI payments. The result is that these companies are increasing their profit margins while deliberately removing the safety nets their workers depend upon to cover them in the event of injury or disability. Or particular concern is that states such as South Carolina are considering adopting similar programs.
In Illinois, the state has chosen an alternative to opt-out plans; the state has simply cut the amount they are willing to pay out against the recommendations of Chicago workers’ compensation attorneys. In 2011, the Illinois Workers’ Compensation Act was amended to reduce medical fees by 30%, and to tie all future increases in payments to the Consumer Price Index. This was done even as the cost for medical care continued to rise. And, while legislators champion statistics that show medical payments per workers’ compensation claim have risen 4% since 2013, they gloss over the fact that payments declined 20% from 2010-2012.
Moreover, Governor Bruce Rauner is insisting that more changes are necessary as the state seeks creative ways to balance the budget and reduce the $8.5 billion shortfall the state is facing over the coming year. Governor Rauner is currently seeking legislative changes that would increase the burden of proof between a workers’ employment and the injury. He is seeking changes to the no-fault provision that would in many cases remove the burden of liability from the employer. Proving the connection between workplace activity and subsequent injury already requires a considerable amount of proof and red tape, and increasing these burdens will only serve to deter workers from filing workers’ compensation claims in the future.
There is a perfect storm brewing across the country that threatens to expose workers to a considerable amount of risk as they go about their jobs. By restricting access for care and turning responsibility for workers’ compensation programs over to companies, states are effectively removing the safety nets workers depend upon. The long-term consequences of this will make it much riskier for employees to perform their jobs and to file workers’ compensation claims following an injury and hurting the employees and their families!