The entire concept of workers' compensation is socialistic. There are those who would argue that all insurance is socialistic, a spreading of the risk of injury of some across a population of many that collectively pays the cost. It is notable in that broader argument that in some respects, the purchase of insurance remains voluntary. But, various forms are increasingly mandated either by the government or by market forces.
For example, there was a time when health insurance coverage was voluntary. Obamacare strove to make it a mandatory purchase, though it failed to effectuate full market coverage. One of the riddles of that legislation is in its mandate of coverage that did not result in 100% coverage. There are those who contend that it did not even significantly increase market purchases. They contend that the reported increases in "coverage" following that law largely came from the concomitant expansion of federal health programs like Medicare, taxpayer-supported socialistic group underwriting of individual needs. It is another example of legislative effort or intent that resulted in less than universal success.
However, workers' compensation is largely mandatory. This statement cannot be more committal because not every state mandates workers' compensation (Texas), and most states with mandatory participation nonetheless allow a certain volume of employers to avoid participation due to their size or other exceptions. In Florida, there are extensive definitions of "employer" and "employee" for the purposes of workers' compensation, see section 440.02, Fla. Stat. These include specific inclusions and exclusions. There is also the general and broad constraint of "in which four or more employees are employed."
Thus, there are populations of independent contractors, small businesses, and specific occupations that are not part of the workers' compensation process. The fact remains that any worker there employed might nonetheless suffer an injury that could require significant care and/or result in significant disability. It is possible that in such an event a worker not covered by workers' compensation might nonetheless be provided care and even support through a variety of other socialistic government programs and plans.
The Florida Supreme Court long ago noted that:
"the fundamental purpose of workmen's compensation is to relieve society of the burden of caring for an injured employee by placing the burden on the industry involved." Sullivan v. Mayo, 121 So.2d 424 (Fla. 1960).
The perception is, or was, that in the absence of workers' compensation, the individual loss or damages might necessarily be more than an individual could afford. In that instance, the care or support might well impact the broader social safety nets that the government has seen fit to implement, private charity, or merely destitution.
This somewhat involved interaction of industrial and government socialization and the complexities of workers' compensation recently struck me reading Bill Would SpreadFirefighter Cancer Claims Cost to All Policyholders on WorkCompCentral. It is an informative article that notes the American trend to legislate workers' compensation coverage for special employees regarding certain diagnoses, notably cancers. In the spirit of other "presumption" laws, these bills provide a greater volume of coverage for employees deemed worthy by their state's legislature.
There is a contention that firefighters suffer cancer at higher rates than the rest of us. I have heard a great deal of testimony and exposition on the subject. It is fair to say that there remains disagreement regarding at least some of the science and conclusions regarding some firefighter cancer diagnoses. What is clear, however, is that various legislatures have reached the conclusion that at least certain cancers suffered by certain employees should be specifically socialized in the workers' compensation process, or in even more specialized methods that seek to prevent such care and disability contributing to the larger social safety net burden.
Some would argue that their decision in that regard is no different than the decision to include those employed by businesses with "four or more" while excluding those who work on their own or in smaller businesses. Note that excluding the smaller employer does not immunize those workers from injury, it merely alters the (arguably) socialistic path to recompense. These would therefore argue that there are various legislative decisions that affect the distinction between and among the various people that face the potential or workplace injury and illness. There is at least some merit in those contentions.
One of the complaints that is voiced regarding the "cancer presumption" in favor of firefighters is that it has a disparate impact on municipalities, counties, airports, and others. It is notable that most businesses do not employ firefighters. Firefighters tend to be employed by government or quasi-government employers. Thus, the "cancer presumption" is of perhaps little interest to a restaurant, retail, or service employer (among others). As the restaurant employs no firefighters, there is no cost to restaurants when the legislature enacts such a presumption. That cost falls to the city, county, etc., which likely has the ability to either task existing revenues to the cost or to increase revenues (tax or fees) for the cost.
Arguably, there may arguably be a broader benefit. Consider that a firefighter with cancer who is not compensable in a state's workers' compensation system might turn to social safety nets such as Medicare, welfare, and more. Those costs are spread across society. Thus the cost of Medicare covering a firefighter cancer is shared by all taxpayers, presumably including that restaurant mentioned above. Alternatively, a firefighter might seek care from group health insurance, and that impact might be felt by all policyholders in their premiums. Therefore, the "cancer presumption" perhaps returns the cost of cancer from the larger societal safety nets to "the industry involved."
But Ohio seems curious about re-socializing the impact of cancer that was presumably thus re-focused with its firefighter presumption. After that presumption shifted the responsibility for some populations of cancers largely onto the municipalities (or others that employ firefighters), and off of the general population, the state is considering shifting it back. As reported by WorkCompCentral, municipalities claim to be struggling with the cost of the cancer presumption. The solution proposed is to shift the liability for those cancers to the state, funded by a "Surplus Fund." This is a fund that is supported by the breadth of workers' compensation, and the broader marketplace of employers.
The proponents of this characterize it as a "relatively painless approach to paying for" such claims. One attorney suggested "that if the cost of a claim doesn't impact the employer, then they would not" resist or fight such claims. The attorney cited statistics that the great majority of Ohio firefighter cancer claims have been litigated issues since that law passed. The perception expressed is seemingly that the Ohio firefighter employers are engaged in litigation not because of their perceptions of either law or specifics, but more so due to benefit costs. The contention seemingly is that when the burden falls to others, there is less probability of principled opposition. An interesting hypothesis.
More broadly, there is perhaps room to question the foundation and structure of any statute. One might conclude that the volume of Ohio litigation is a symptom of uncertainty or clarity, and perhaps that therefore language might be revised. In other words, the complained-of volume of litigation might result from an unclear and ill-defined statutory construct that creates rather than resolves uncertainty and questions. Statutory drafting and revision might resolve such issues if indeed they exist. The Ohio solution, to retain the employee benefit, but simply re-socialize the cost to all of the Ohio employers is another approach.
Notably, there may be a sound argument that firefighters do not limit their efforts to municipal fires and accidents; they respond to anyone's fire or accident. That service is supported by tax dollars. The entire community benefits from their presence, so perhaps it is appropriate for the whole workers' compensation system to compensate for the risk associated with their service, in the perceptions of the legislature? In that context, others might argue that everyone in the market is already paying their share of this government cost, in the form of the taxes that they pay. They might argue that shifting the costs to a state fund merely allows the municipalities and others who hire firefighters to avoid the otherwise necessary tax or spending decisions required to budget for the expense.
There may also be an argument that the industry (firefighting) should bear the cost of any perceived risk that emanates from it. That would be more in line with Sullivan and a variety of similarly worded court decisions around the country. That argument might be that it makes more sense for the people to know those costs, and for tax bills to reflect the collections that are necessary for them. Those taking this argument might contend that by instead shifting the burden to all workers' compensation employers, the "real" cost is being concealed or obscured.
At the end of the day, Ohio's policymakers seem to be in a debate about their recent presumption creation. Their dilemma is about the cost, which may or may not have been considered when the legislature adopted the policy position of this presumption. The question will be whether the legislature addresses the cost in terms of appropriateness, addresses the statute in terms of clarity and predictability, or instead addresses some manner of deflecting the cost objection through re-socializing, in a non-taxation method, the cost across a broader population than merely the municipalities.
A legislative aid was quoted by WorkCompCentral attempting to encapsulate the dilemma:
“The goal is to get rid of the appeals on these cancer claims as much as possible . . .. These firefighters need benefits; they have a lot of medical expenses. But municipalities need help, too."
Thus a recognition of the two critical salient points. Someone has to pay (May 2016) the cost of the cancer and resulting disability. When the decision is made as to whom (the employee, the municipality, group health, etc.) then the concomitant decision of how they will pay is necessary. There is no discussion in the article about the "easy" solution of merely raising taxes to pay for the legislature's institution of this presumption. Regardless of how Ohio meets the perceived concerns, there may be similar questions as to other states. While that Ohio statute is two years old, the Florida firefighter cancer bill is less than a year. Whether Florida will face the volume of resistance and litigation described remains to be seen, as do the costs the bill will bring to those who employ firefighters.
However, some quoted in the article cast doubt there will be similar efforts at some "fund" or re-socialization of firefighter cancer in other states. They note multiple concerns for such a solution in a "market-based insurance" (Ohio's system is state-owned and run). In the end, however, it is critical to remember that legislatures make a myriad of difficult choices in defining the parameters of workers' compensation coverage and benefits. The overall workforce is diverse, as is industry. There are so many variables and considerations with which they must contend. It will be interesting to see how Ohio deals with the decisions it has made, their implications and the potential solution of re-socializing the broader costs.
