May 27, 2011
Reasonable Deal Given the Political Climate
We are pleased to report that a compromise has been reached on HB 709, after much intense and time-consuming negotiation. The bill that was originally introduced would have had a devastating effect on injured workers in many respects if it had passed as introduced. We are very satisfied with the compromise and were a very big part of negotiating it.
A short history: This is the third major attack on the workers’ compensation system in which we have been involved. The first was in the early 1990’s and the second was in 2005. In both cases we came out well, and enjoy one of the most stable workers compensation systems in the country.
We knew we would see a very bad bill this session and that the new majorities in both chambers of the legislature would provide a much more receptive audience to the business community’s attempt at reform. Indeed we predicted the bill at our legislative conference and had our members begin lobbying against it then. Sen. Doug Berger, the recipient of our “Friend of the Worker” award at the conference, and himself a workers compensation attorney representing employees, spoke about what we could expect and how bad it would be.
We then had our members contact legislators even before a bill was introduced, in hopes that those contacts might soften the bill actually introduced, and that effort seemed to have some effect.
When the bill was finally introduced, it indeed contained a number of drastic provisions that we have told you about. These included:
a. Artificially cutting off benefits after 500 weeks in most cases, regardless whether the worker has any wage earning capacity:
b. Severely limiting the ability of an injured worker to be treated or evaluated by any doctor except the doctor picked by the company or the insurance company:
c. Requiring an injured worker to take almost any job, or have benefits cut off;
d. Giving the insurance companies almost unfettered rights to examine a worker’s medical records and talk to the treating doctor, all without the worker’s permission.
We again asked our members to call legislators to oppose the bill in an effort to force them to the table. These efforts were successful, and several weeks ago negotiations began. Labor was represented in the negotiations by Hank Patterson, Mike Okun’s partner and a lawyer who has represented unions going back to the organizing of the textile mills decades ago and who also represented labor in the two workers’ compensation fights going back to the 1990s. He kept us regularly updated on the status of negotiations. In the past few weeks he was involved in about 40 hours of negotiation, at least once into the wee hours of the morning.
Finally an acceptable compromise was reached on the important points. In some respects, the compromise bill is a step backwards, but in other areas there are true improvements in the law. Indeed, Sen. Berger told us, after reviewing the compromise, that given the political environment at the General Assembly, the compromise we helped reach is a very reasonable one that in many respects helps injured workers. It is expected to pass both the House and the Senate.
A few examples of changes:
*The original bill cut off benefits at 500 weeks, with very limited exceptions. In the compromise bill, an injured employee will be allowed to receive lifetime benefits if the employee is completely unable to work;
*The original bill provided that the employer or insurance company could call an injured worker’s treating doctor without the employee’s permission or even knowledge. Under the compromise, the employer or insurance company must give prior notice to the employee, or his or her lawyer, and the opportunity to participate at a mutually convenient time;
* Unlike the original bill, the compromise allows the employee the right to retain his or her own doctor where shown to be necessary;
*Under current law benefits for wage loss for partial disability are limited to a maximum of 300 weeks from the date of injury. The compromise allows a maximum of 500 weekly payments which could extend out over many years. Thus, the bill provides for more weeks of benefits and allows them to be “floating” weeks;
*The compromise increases the current death benefit level from 400 to 500 weeks and increases by almost threefold the entitlement for funeral expenses, both of which could result in substantial increase for a widow or widower.
There are many other provisions that we will describe in more detail in the near future. Of course there are parts we are not happy with, and some of our members may not be happy with, just as there are parts the trial lawyers are not happy with, and just as there are parts the business community is not happy with. But we feel we did the very best possible given the current political climate. Some have urged that we should not have compromised at all and tried to kill the bill. If we thought we could kill the bill, that is certainly the course we would have taken; indeed it is the course we took last session when a comp bill was introduced, and we helped kill it. But this session, our very best friends in the legislature advised us that killing the bill was not likely. The consequences of allowing the original provisions to pass would be too harmful to too many people, and too difficult to take back in the future. That’s why reaching a compromise was so important.
James Andrews was one of the people asked to speak about the compromise at the legislative hearing yesterday at which it was announced. He said that we supported the compromise although we are not perfectly happy with all aspects of the bill.
James, MaryBe, Mike Okun and Hank Patterson have spent a lot of time in Raleigh on this important issue, in many, many different ways. We are particularly appreciative to Hank, who volunteered his time and helped to make labor a true player in the process. Mostly, however, we want to thank all of you who helped in so many ways over the past months by contacting your legislators — our successes are yours. As noted, we will follow up with more details. Do not hesitate to call us at 919.833.6678 in the meantime if you have any questions.