Workers comp: Driving away business or no big deal?
NASHVILLE (AP) — Gov. Phil Bredesen says Tennessee’s workers’ compensation law is bad for business and he has all but ordered the Legislature to change it.
But on other hand, some statistics show Tennessee is competitive with other states for workers’ comp costs. Best to just leave the current system in place, advocates say.
Pity the poor legislators who have to sort all this out.
Workers’ compensation is so complex it has its own language with more acronyms than NASA. It often pits serious political heavyweights against each other — labor and business, trial lawyers and doctors.
On one day, lawmakers will hear that the rising cost of workers’ comp premiums is a result of the insurance business cycle that has nothing to do with Tennessee law. They are told Tennessee isn’t losing jobs to other states but to China or Mexico or India, and that workers’ comp costs are the least of their problems.
The next day, lobbyists from Tennessee’s major businesses will bury you in statistics and stories showing that their workers’ comp costs are considerably higher than their sister plants in other states.
“This,” said Sen. Larry Trail, a lawyer who does a lot of workers’ comp work and understands it better than most, “is confusing.”
For example, let’s say you get careless at work one day and cut off a finger. How disabled are you?
It depends on what you do. If you’re a soccer player or a lawyer, probably not very.
But what if you’re a concert pianist, a surgeon or a court reporter? Should that lost finger be worth the same in worker’s compensation benefits, no matter what?
Or say you bend over to pick up a pencil off the office floor and hurt your back. Do the same thing at home, and your health insurance has to cover it. But what about at work? Should that be a work-related injury, even if it had nothing to do with your job other than where it happened?
The Legislature also faces a far more compact time schedule to answer all these questions this year.
Bredesen began making noise about the issue last fall. In January, he said in no uncertain terms that he expected the Legislature to bring him a bill to sign this year.
Normally the Legislature would set up a study committee and look at an issue like this over the summer.
But House Speaker Jimmy Naifeh and Lt. Gov. John Wilder formed a joint ad hoc legislative committee, which is working with four of Bredesen’s commissioners to piece something together.
No bill has yet emerged, but the committee says it’s imminent.
Despite the conflicting testimony, lawmakers are looking at a few aspects of the issue that distinguish Tennessee’s system from others.
One is the “multiplier,” which allows judges to increase a doctor’s determination of impairment by up to 2.5 times for an injured worker who returns to the same or a similar job; or up to six times for an employee who cannot return to work.
These calculations are applied to what is called a “permanent partial disability” — like losing a finger. There are schedules that assign value to different body parts. An injury to the body as a whole is a different thing.
“The math is easy. What’s difficult is deciding on the multiplier,” said Rep. Jere Hargrove, co-chairman of the ad hoc committee. “There are all kinds of variables.”
The variables include the worker’s training, education level, availability of employment and age. All should be considered when determining the extent of disability, Trail said.
Also, he said, “These injuries that happen at work but aren’t work-related concern me some.”
Other key areas of debate are Tennessee’s court-based system for deciding awards. All other states except Alabama use some sort of administrative review process before a case can go to court.
Critics of Tennessee’s system say this leads to “judge shopping” by injured workers looking for the judge most likely to sign off on a big award.
Then again, as is typical on this issue, an expert hired by the trial lawyers testified last week that Tennessee does not have a significantly higher percentage of litigated claims, nor relatively higher costs in those claims.
“High litigation rates are not suggested by our review,” he said.
Then there are medical fee schedules. As in many other areas, medical costs in workers’ comp cases are increasing more rapidly than other costs. Many states have a schedule for how much will be paid in medical costs; Tennessee does not.
“We had one medical group from Memphis tell us if we adopted a fee schedule they were out of here like that,” Hargrove said, snapping his fingers. “They wouldn’t take anymore workers’ comp.”
Tennessee also does not require workers’ compensation coverage for companies with fewer than five employees. Some call this a flaw because it creates an uneven playing field and leaves an estimated 91,000 workers without protection.
“If we do all these things is there any guarantee there will be a corresponding reduction in workers’ compensation premiums?” Hargrove asked. “Wouldn’t it be the worst of all worlds if we did all this and the premiums still didn’t go down?”
Even so, he said, “Something’s going to happen.”
And both he and Sen. Joe Haynes, the ad hoc committee co-chairs, professed a similar goal: A bill that makes everybody a little bit mad.
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On the Net:
Tennessee General Assembly, http://www.legislature.state.tn.us/
Workers’ Comp Division, http://www.state.tn.us/labor-wfd/wcomp.html