Thursday, March 26, 2015

Henley's Song

Yesterday fellow blogger Bob Wilson of wrote that Tennessee's pending opt-out bill, SB 721, was "complete and utter bullshit."

Wilson chastised the proponent's attempt to cap medical costs at $500,000, which was recently increased from the really miserly $300,000.

As Wilson states, "That means an employee with catastrophic injuries such as paralysis or Traumatic Brain Injury will be eligible for treatment up to the point where they meet the $500,000 threshold. Then their sorry asses will be rolled to the curb, waiting with the trash. Their only hope of refuge at that point will be for the Medicare/SSDI bus to roll by and pick them up."

Curiously, a big segment of the insurance industry seems to agree.

The other day the American Insurance Association has released a statement calling SB 721 “an uncommonly bad bill” because it “eliminates an entire genre of benefits.”

“Indeed, the bill’s mandated plan benefits do not provide for any permanency benefits: No permanent partial or permanent total benefits. It eliminates lifetime medical benefits, capping medical at $300,000 [at the time of the statement, since raised to $500,000], thereby jeopardizing treatment of workers with the most serious injuries,” the statement said. “Nor are there funeral benefits, nor for ancillary benefits common in workers’ compensation systems – van and home modification, custodial care, hearing aids, and artificial limbs.”

Those concerns were recently addressed by the same amendment that increased the medical cap:
  • Permanent partial disability benefits of at least 70% of the employee’s AWW, up to 110% of the state AWW, based on the criteria of the American Medical Association’s Guides to the Evaluation of Permanent Impairment that is in effect when the employee’s impairment is rated. The benefits are subject to a whole-body maximum of 405 weeks.
  • Permanent total disability benefits of at least 70% of the employee’s AWW, also capped at 110% of the state AWW, for at least 260 weeks or whenever the employee becomes eligible for Social Security benefits, whichever is later.
  • Death benefits either three times the employee’s average annualized wages or $300,000, whichever is less. If the deceased employee does not leave a surviving spouse or dependents, however, the death benefit may be reduced to no less than $20,000. The death benefit will include a funeral benefit of at least $7,500 for burial expenses. However, any other disability benefits payable to the employee may be deducted from the overall death benefit.

The worst part, AIA says, it is the employer who determines what an occupational injury is and the appeal process is limited to whom the employer pays for arbitration - i.e. the proverbial loaded gun.

Though Green's bill was recently amended to add minimum disability indemnity rates for both permanent and temporary disability, the truth of the matter is that SB 721 plays right into recent criticisms of the evolution of workers' compensation in the general media - it distinctly and intentionally pushes an employer's responsibility onto the public sector.

For instance, permanent total disability benefits are to be paid for at least 260 weeks or whenever the employee becomes eligible for Social Security benefits, whichever is later.

An employer's failure to properly manage its safety and claims management system should not be the responsibility of taxpayers.

A Tennessee employer's opt-out insurance policy, under the present SB 721, can have limits - presumably after that money runs out then there is no insurance, and, as Wilson states, the worker is put out with the trash.

Trey Gillespie, senior workers’ compensation director for the Property Casualty Insurers Association of America, told WorkCompCentral, “They created some interesting window dressing to make the bill look better. But it doesn’t change how opt-out works. And it really doesn’t give the injured worker any additional protections.”

Part 3 of the NPR/ProPublica series critical of worker's compensation as reformed over the years has been released, with vignettes of terrible things happening to good people because of the constant attack on benefits: caps on TTD, constrictions on care, blame on pre-existing conditions, revisiting previously approved treatment.

My guess is that the industry will again attack this piece of journalism for sensationalizing the worst cases, ignoring the majority of successful cases, and vilifying carriers and administrators.

Tough - these are the cases that need to be put out into the public view because there's no excuse for them. These are the cases that for which insurance is created. These are the cases where REAL help is needed, not constrictions, obstacles or obfuscations.

This is the backdrop against which opt-out plays.

As Wilson so aptly stated, "The push for opt out is, in my opinion, a reaction to failures and shortcomings within our own system."

Exactly. Will opt-out be passed in Tennessee? I think it will - the political power is in place to make that happeh. Will opt-out spread to even more states? Probably - those that back it, Big Business, have powerful lobbies everywhere they do business and opt-out is beneficial to the bottom line. Does anybody give a rat's ass? Not until their medical treatment has been delayed to the point where disability indemnity has run out so they can't afford to undergo such treatment.

Then they can be highlighted in a ProPublica article.

"Kick 'em when they're up, kick 'em when they're down." Don Henley was writing about gossip media, but he just as well may have been singing about the uninformed masses.

Don't you think the signs are there and that the message is loud? Work comp is being attacked with legislative options and public criticism because there are too many times when it doesn't work.

I love the good things that work comp accomplishes. Unfortunately, no one wants to face the truth: there are way too many times when it doesn't work.

"Dirty little secrets, dirty little lies
"We got our dirty little fingers in everybody's pie
"We love to cut you down to size, we love dirty laundry"

Yep - Henley's song IS about work comp.


  1. the continued introduction of these draconian pieces of legislation may fuel the fire to repeal exclusive remedy a la Padgett v. State of Florida No. 11-13661 CA 25.
    at what point in the incremental reneging of the Grand Bargain of Workers Compensation will more and more work injuries be funneled into the civil court system?
    many of those politicians must believe they will be able to fashion an alternative to their existing workers compensation system that will give their special interest partners a better deal.
    in the last few decades the ascendency of business interests and the demise of worker clout in politics would seem to bear this out,

  2. YEP AGREED, and once agina crying happy tears after reading this one. Its article like these that help the injured workers stay stong. Rock on and keep em comming, the LEADER in our Country need to start telling us the truth about workers comp,not covering it up like we do here in WA STATE. Our leaders and using thee local npr to try and put thier spin on the fact that things are really just fine in wa. Not so, hopstials and other employers on not treating and are doing just what the NPR expose' has to say about it all. Our grand bargain no longer exist for many who pay for it, and this being done intenlty in WA STATE and our leaders know this and choose to turn a blind eye to patinets absue for profit. They may come out ad prove me worng, but so far the reaction for WA STATE leaders has only been to ignore the piece then get the local pressto only tell one side of the story, while blocking out all the whislte blowers to the harm. Sad. really. but this article does help to keep one strong and fight for their rights, and most of all for what is RIGHT and justice in our world. If I pay for a product, I ought not be intently cheated out of it at the bed sides, on sniffs, sners and grins, and not the objective medical evidence, as many are having done to them these days in WA State and across this country. I do hope they head the call from NPR and take action, instead continuing to stick thier heads up thier, you know what's, here in WA State. Peace and thanks as always. I acctually sent this song out to all the WA State legislators over a year ago, and the song DIVORCE to Sen Patty Murray and the whole DEM gang that I voted for, and that know this patients abuse in comp and our state med tort laws are going on, to our frivolous folks lives, but none seem to care nor do their DUTY as well, and that is all to report harm to humans for profit, if they see, nore hear that that is going on. Where are all the good folks in government these days. Im not seeing any here in WA STATE as of yet, the GOV Jay, knows this is going on, and he comes out and says nothing. WHY?

  3. And one more thing about WA State, and our comp systems. Why is it that WA state says not to covering medical mj in wc, while the state of New Mexico covers it for an IW. That itself is not eqault to all workers. Just saying, and still apealng ect... step by step, as the mental health pt on tl over the mh, having to try and defend his rights and cuase pro se, after being driven nuts all ready 24x7 all ready over the utter unjutice of it all. My quest for MJ is not just so folks have their meds coverdl, it is also about equlity in a system that is anything but. these days.