Workers' compensation, pretty boring stuff, until you need its benefits. So, this is for all you workers out there – from desk jockeys and burger flippers, to firefighters – and for you employers who want the best for your workers. What do you do if you are injured on the job and are unable to work for several weeks, months or years? How will you keep a roof over your head, make your car payments, buy clothes for your kids or put food on the table? If you are like most Montanans, you would have to rely upon the Workers' Compensation system.
The Work Comp system was developed to meet two needs: first, and foremost it seems, the need of employers to protect themselves from lawsuits brought by injured workers; and, second, the need of injured workers to obtain prompt, fair and full medical treatment, rehabilitation and compensation for work place injuries. The system, while not perfect, worked reasonably well for decades. Workers generally received what they bargained for.
In the 1980's the system experienced problems, chiefly medical and rehabilitation costs started rising rapidly, and, the state bureaucratic system was increasingly inefficient. To cover increased costs, employer insurance rates rose. Every legislative session since then we have seen efforts to lower employer rates, and the chief tool to do that has been to reduce benefits to injured workers.
The Governor’s Labor Management Advisory Council, LMAC, is composed of five employer and five worker representatives. In 2011, after several years of study, review and negotiation, LMAC proposed several changes that employers and insurers wanted to reduce costs. The main benefit for workers in the package was a slight increase in the number of weeks they can receive permanent partial disability benefits, and an increase in the cap on their weekly benefit as a percentage of the state’s average weekly wage.
In 2011, the legislature made additional significant changes to the system in the form of HB 334. That bill adopted all the LMAC negotiated concessions to reduce costs, plus more reductions in benefits, and, it left out virtually all the negotiated benefits for workers.
While HB 334 went into effect in 2011, we are just now beginning to see the impact of many of those changes. Cutting benefits to workers did lower employer insurance costs, but not as much as predicted. And, it has adversely affected those injured on the job.
One loss to injured workers was a change in permanent partial disability payments. Those payments go only to injured workers who suffer a whole person impairment rating greater than zero and have a wage loss, or to injured workers with a Class 2 or greater impairment rating and no wage loss. This was not in the consensus agreement that LMAC arrived at.
An impairment is a significant deviation, loss, or loss of use of any body structure or body function in an individual. This has been a major concern for injured workers with Class 1 impairments and no wage loss – they now receive NO compensation for the impairment. So, those low wage workers that have a finger or two sliced off receive no benefit for their life long impairment.
Substantial numbers of injured workers have been negatively impacted by this change. The supporters of HB 334 estimated this change would reduce benefits by $22 million. Some trial lawyers representing injured workers will be challenging this change in court, but for now, workers with no wage loss and a Class 1 impairment get nothing.
Initially, injured workers are allowed to choose their health care provider, and all providers are paid at the rate set by law. HB 334 allows the insurer to approve the workers’ choice as treating physician OR the insurer can designate a different treating physician. This was not in the consensus agreement that LMAC arrived at. This has been a major concern with workers' choice of physician being overridden by the insurer, reducing access to medical care, designation of treating physicians in distant towns and delays in receiving medical care for injured workers.
Substantial numbers of workers have been negatively impacted by this change – which was projected to save $38 million. Again, some trial lawyers representing injured workers will be challenging this change in court, but for now, insurers get to choose a worker's treating physician.
The LMAC was reconstituted last year. Once again it will be holding public meetings to review the work comp system. Injured workers and employers are encouraged to share with the LMAC their thoughts, comments and experiences with Montana's workers' compensation system. One of LMAC's concerns is assessing the effects of HB 334. LMAC's website [www.mtlmac.com] has a schedule of upcoming meetings and other useful materials. The next meeting is March 13th.
For the past two decades, the legislature has decreased benefits, and it has rarely responded to injured workers’ concerns with ever decreasing benefit levels. Yet, all those cuts in benefits never seem to lower employers’ insurance premiums enough. Hopefully, the legislature will take a close look at the balanced reforms that may be proposed by LMAC. You can be a part of the work LMAC does in the coming year – by attending LMAC meetings or by communicating your thoughts and stories to the LMAC or by sending me an email at mtla@mt.net.
This is Al Smith for the Montana Trial Lawyers Association.