Wednesday, April 29, 2015

What Matters

It's a tale of contrasts in this morning's WorkCompCentral News.

There's joy and elation within the "opt-out" crowd that the Oklahoma Supreme Court denied taking on original jurisdiction in the constitutional challenge to that state's recent reform law, and in particular the option employers have to provide alternatives to The System.

Those challenging the law are more circumspect, saying that the court's decision at this time wasn't not expected and that they'll be back when the case is "ripe" for review.

Plaintiffs’ attorney Bob Burke says he understands that the court didn't think the case was ready for review yet but that he was trying to fast-track it, “Because it is a question that everybody needs answered.”

Opt-out proponent and president of non-subscription specialty broker PartnerSource, Bill Minick, told WorkCompCentral that "Oklahoma’s highest court has given the green light for a truly competitive marketplace for workers’ compensation.” Minick and proponents argue that opt-out and non-subscription actually provide better protection for injured workers than state work comp systems.

That point is highly debated by the opposition, largely on the grounds that in dispute resolution the cards are stacked against workers, and that the industry isn't very transparent, if at all, with work injury and recovery data - even resisting state efforts to expand reporting and data requirements.

While the debate about non-subscription continues in Oklahoma, and is off the table for this year in Tennessee, tribal compensation pacts tied to gambling continue to be controversial starting with New Mexico's recent extension of Indian Tribe gaming.

The challenge is comparing tribal compensation to traditional state based systems because of extreme variations and, again, lack of complete transparency.

As sovereign nations, tribes can enact their own laws and employee benefits as they choose, and if they have a complete infrastructure in place, there can even be a number of tribal courts and adjudicators to resolve workers’ compensation disputes. States that permit tribal gambling tie work comp protections into those compacts, but tribes, like opt-out employers, have great latitude in defining their systems, including dispute resolution processes.

It comes down to culture.

Dave Lundgren, a Washington-based attorney who specializes in tribal law, told WorkCompCentral, “They know their people and they know their customs, where non-Indian administrative structures do not.”

For example, for some tribes creating their own workers’ compensation ordinance means allowing them to add medical treatments from tribal healers or medicine men to their list of approved vendors, something most states don’t allow.

But the difference lies in sophistication of systems, or taken another way, system complexity that has creeped into workers' compensation statutes over the past 100 years.

“Administrative entities have had a century in developing workers’ comp, whereas tribes are in their infancy,” said Lundgren. “They’re trying to eliminate what they view as too much red tape and onerous over-regulation and simplify it so that they can streamline.”

That sounds like an argument out of the non-subscription playbook: employer control. Proponents rally around the claim that opt-out systems are simpler, handle claims faster, involve fewer lawyers and are more expedient as a result.

Injured worker advocates say all that these plans do is stack the cards against them.

One of the key arguments made by the plaintiffs to the Oklahoma Supreme Court was that the dispute resolution process provided in alternative plans limit judicial or administrative review of claim denials, requiring an appeal to a committee of three members who were not involved in the original benefit determination, and who can be appointed by the employers.

That is an issue with tribal gaming compacts as well.

A few years ago a California appellate court ruled in Middletown Rancheria v. Workers' Compensation Appeals Board, that the Workers' Compensation Appeals Board lacks jurisdiction over federally recognized American Indian tribes for the purposes of enforcing workers' compensation laws.

In the Middletown case, workers of the casino that disagreed with the way their workers’ compensation claim was handled could bring a dispute only before the tribal council, which was only comprised of members of direct lineage of descendants of Middletown Rancheria, with no specialized council for workers’ compensation.

The truth, I suspect, is somewhere in between. But we don't really know, because there isn't any systematic, objective survey of all of these different systems.

Nor is there any long term study on the impact such disparate systems have on injured workers, employers or the communities affected.

What we do know is that there is a publicly growing groundswell of criticism about standard workers' compensation from employers, injured workers, providers and many others. Most of that criticism stems from one simple failure: taking care of the injured worker timely, efficiently, fairly.

To win over critics, any alternative system, including opt-out and tribal compact options, is going to have to demonstrate with real comparison data, the superiority of these plans to standard issue work comp systems in terms of the one constituency that doesn't have much say in the matter - those subjected to the systems.

No comments:

Post a Comment