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There will probably be legislation on workers’ compensation next January. The interesting question is whether any controversial – and important – issues will see the light of day.
Workers’ compensation legislation often originates from the Workers’ Compensation Advisory Council, a statutory body of six members, three representing employers and three representing workers, appointed by the governor. The council was created as part of the 1990 reform of the workers’ compensation law. Its official role is to report annually on the state of the workers’ compensation system to the governor and Legislature.
Years ago, this morphed into the annual expectation that legislation on workers’ compensation would either originate from the council or, if it came from anyone else, would be reviewed by the council, and its recommendation would be passed to the Legislature – to be considered seriously or not, as legislators choose.
In May, Workers’ Compensation Administration director Ned Fuller presented a wish list of law changes to the council. In July, first drafts were presented, but only for the easy stuff. An example of easy stuff: A proposal to delete a requirement that certain legal documents must be sent by certified mail, so that more efficient electronic communication can be used where feasible.
Even that did not go without challenge, as injured workers may not have access to e-mail. We’re a long way from final drafts.
This is a warm-up. The council has four members held over from the Richardson administration and two newly appointed members. This group’s ability to make decisions collaboratively is untested.
Operating in the background, for most of these 20 years, has been a private, members-only group called the Business and Labor Coalition. The coalition represents some interest groups involved in the workers’ compensation system, including several self-insured employer groups and organized labor. For years, the coalition resisted allowing trial lawyers to participate, but now they do.
The council often relies on the coalition for technical help. In recent years the council has deferred to this coalition on most matters, allowing the coalition to reach business-labor compromises in private and generally not supporting a proposal unless the coalition supported it first. This is not mandatory, but it has become customary.
The drug and alcohol issue is a big item on the director’s wish list. A few cases have been splashed across the headlines recently, involving a worker who got injured while drunk or stoned. The statutory language is messy, partially due to a compromise in 2001 that came out way more complicated than its original proponents had intended.
This has always been highly controversial because workers’ compensation is intended to be a no-fault system; the drug and alcohol issue is in conflict with that principle, and the coalition in recent years has not been able to reach a new agreement on how to resolve the conflict.
It’s not known, by the way, how many cases involve drugs or alcohol, how many drug or alcohol claims are successfully denied, or much of anything else about what’s really happening on the drug-alcohol issue because no relevant statistics are kept.
One big issue on the director’s list is a revisit of the coverage requirement for the very smallest businesses, based on a recent Court of Appeals decision. This is a gut-level issue for those businesses. We’ll see whether the council tackles it.
The biggest issue, of course, is the one rarely talked about, the critical question of how well this system is fulfilling its basic mission.
Insider groups like the coalition can be extremely helpful, especially when laws are highly technical and complex. Legislators and the public, however, need to bear in mind that, in a field that affects almost all working people, the rest of us should be in on the conversation, too.
Contact Merilee Dannemann throughtriplespacedagain.com.