Commentary - August 27th, 2013
9:27 am
Wed August 28, 2013

Work Comp on Right Road? Not for Workers

Last week, the Missoulian Editorial Board proclaimed, “State on right road with workers’ comp.” As an attorney who represents injured workers, I could not disagree more. From my perspective, if you are injured on the job in Montana, and relegated to the “meat grinder” of the workers’ compensation system, you are often on the Road to Ruin.

The Missoulian applauds the 2011 Legislature for “finally” taking the right steps to reduce premiums for businesses in Montana. In truth, what occurred in 2011 has been happening every session the legislature has met since 1987; trying to lower premiums on the backs of injured workers. From 1987 to 2011, the consistent fix has been to cut wage loss and medical benefits to injured workers. But in 2011, the Legislature went even further by stripping workers of the constitutional right that every Montana citizen has enjoyed – the right to choose one’s treating physician.

This Coup de Gras provides that, at any time, “the insurer may designate or approve a treating physician who agrees to assume the responsibility of the treating physician.” Now, an insurer can send an injured worker to a “company” doctor, who works almost exclusively on behalf of insurance companies. Preventing injured workers from choosing their own doctor may reduce medical services and claim dollars, but at the price of violating the sacred, constitutionally protected bond between patient and physician. How would you feel if your insurer told you that your doctor – who knows you, is competent to handle your treatment needs, and is within the insurer’s network – was being replaced by the company doctor?

The Legislature had previously passed a similarly invasive law, one that allowed the insurer to literally sit in the examination room guised as a “nurse case manager.” This law allowed the insurance company to talk privately with the worker’s physician, without the knowledge of the worker or his or her attorney. Recently, the Workers’ Compensation Court struck down that law, deeming it an unconstitutional violation of a Montanan’s right to privacy. A link to that case will be posted with this commentary on KUFM’s website, where you can read about the insurer’s “behind the scenes” antics in that case. I wish the Editorial Board of the Missoulian had read the case before proclaiming our state is on the “right road”.

After years of legislative cuts, the wage loss benefit is so minimal that I tell most of my clients to prepare for financial shock and hardship. I currently represent a lifelong laborer who had, until recently, never filed a workers’ compensation claim, although he worked about 25 years performing hard, heavy labor. He was earning nearly $60,000 a year which equates to about $1, 153 per week. His doctor will not release him to work until he recovers from his injuries. He therefore receives weekly benefits in the amount of $596.35 per week, or about half of what he earned while on the job. For him and other workers, it is distressing to try to feed a family and keep a roof over their heads while recovering from a devastating injury that happened at work.

I could go on and on with examples of the system’s pitfalls for workers, but what of the Missoulian's concern for high premiums? Insurance premiums can be effectively reduced without eliminating workers’ medical and constitutional rights. Montana is one of the more dangerous states in which to work, and workplace injuries and deaths in Montana occur far too often. While the editorial acknowledged that job-site safety is an issue that needs to be addressed, the Legislature has essentially scoffed at the issue in the past. Montana laws provide little disincentive to an employer who operates an unsafe work environment. Even when a worker is injured by actual malice of the employer, the Legislature has shielded such employers from legitimate legal claims regardless of the severity of injury to the employee. By focusing on improving workplace safety to reduce injuries and benefits paid, our law makers could effectively serve both the Montana workers and employers they were elected to serve.

It is unfortunate that the Missoulian has taken the corporate, insurance industry line regarding workers’ compensation; that whatever we do in this state to reduce premiums is okay, even stomping on individual constitutional rights and denying injured workers reasonable wage loss benefits. Legislators and editorial boards need to look into the eyes of the injured Montana workers I represent, hear their stories and share in the anguish of a proud bread winner struggling to provide for his or her family’s basic needs with the receipt of workers’ compensation benefits.

This is Syd McKenna for the Montana Trial Lawyers Association

Workers Compensation Court decision

http://wcc.dli.mt.gov/m/Malcomson 2013MTWCC21.pdf