I recently
attended a program at which Professor John Burton spoke regarding his service
on the 1972 National Commission on Workers' Compensation. He recounted how that
Commission met 11 times, over 32 days. The end result was the formulation of 19
essential recommendations. He noted that these recommendations were not
followed by the States and that by 2004 the U.S. Department of Labor stopped
even tracking State progress with the 1972 Commission recommendations.
Professor Burton discussed the 2009 attempt at the formation of
another National Commission. He concluded that the membership requirements in
the proposed bill by Representative Baca were so complex that it is unlikely
any such group of people could have been assembled, even if the bill had
passed. He expressed doubt that any such a "modern" commission could
effectively address the issues that face workers' compensation. His support for this seems to be his conclusion that politics has become too
partisan today. As proposed in the bill, he concluded "the 2009 National
Commission" appointment process "virtually guaranteed that the
deliberations of the Commission will be divisive and the report splintered.”
That said, Professor Burton proposed four areas in which he believes there is
room for a national debate in workers' compensation. He suggests that there are
organizations already postured to play a meaningful role in these four topic
areas. He said, "the best way to improve workers' compensation in the 21st
Century is to choose narrow topics for which solutions are not immediately
obvious and for which the solutions have considerable potential to be
beneficial to most if not all parties in the workers' compensation
system."
First, he suggested revisiting the determination of permanent
disability. After defining the differences between work disability and
limitations on activities of daily living (non-work disabilities), he concluded
that this subject should be studied by physicians, rehabilitation
professionals, nursing professionals, and economists. He explained that there
are a multitude of issues that should be addressed, including the causal
relationship of injury, the extent of work disability, the determination of
what "constitutes an adequate" compensation, and how an appropriate
disability guide might be developed and implemented. He noted that the AMA
guides, used by many states, are misused. Another criticism he notes is that
the AMA guides are not based upon evidence, but are "largely based on
consensus among physicians." Professor Burton suggested that the Institute of Medicine would be a sound body to undertake this project. In some
parts, his faith is based upon the IOM efforts regarding the determination of
disability for veterans.
Second, he suggests, there should be an examination of the
dichotomy in medical care provision when work versus non-work maladies are
involved. He notes that physician choice is one area in which there is a great
difference. The injured worker may have her or his work injury care directed by
the employer or their carrier in some jurisdictions. However, the same employee
suffering a personal injury may be free (or freer) to choose their own
physician. He posits that "an examination of these and other issues pertaining
to the worker's compensation health care system should produce evidence and
recommendations that are beneficial to most participants in the workers'
compensation program. He likewise suggests that the IOM is the appropriate
organization for this debate/challenge.
Third, Professor Burton notes that tests for compensability have
become less straightforward in the years since workers' compensation was
conceived. He also argues that many states have "adopted legal tests for
compensability that are based on outdated medical knowledge." He says that
the result of such tests is a finding of compensability when "there is no
scientific basis for that conclusion." He posits that simplification of
the tests might be in order and that it may be time for a new publicly funded
"disability program that provides" benefits "regardless of the
cause" of the injury. He proposes that the National Academy of Social Insurance
may be best situated and prepared to undertake a meaningful study of these and
other compensability issues.
Fourth, he notes that the recommendations of the 1972 Commission
have not been widely implemented. He believes that "the primary obstacle
to state reform was competition among states for employers and the fear that an
adequate workers' compensation program in a state would drive employers to a
less expensive jurisdiction. He notes that data from NCCI seems to support
statutory benefits decreased in the 1990s and 2000s. He labels this a
"race to the bottom" regarding benefits and thereby workers' compensation
costs. He argues that states appear to be engaged in such a race, and that the
only cure for this is "a viable threat of federal intervention to counter
the alms race." That said, he does not support such a federalization
plan.
In all, the presentation and written materials provided a stimulating
discussion from a variety of perspectives.
