Tennessee legislators are currently considering SB721, a bill that would allow employers to “opt out” of the traditional workers' compensation system in that state. The ramifications of this bill, however, go far beyond simply opting out for an alternative “better” plan. Instead what these lawmakers are actually considering is the creation of tiered protection plans that offer vastly different benefits to workers, based simply on who they work for at the time of the accident. Most bothersome however, is that SB721 appears poised to completely screw the seriously injured workers whose employers select opt out.
At the core of that assessment is the fact that SB721 will allow Optioned employers to cap medical benefits at $500,000. That means an employee with catastrophic injuries such as paralysis or Traumatic Brain Injury will be eligible for treatment up to the point where they meet the $500,000 threshold. Then their sorry asses will be rolled to the curb, waiting with the trash. Their only hope of refuge at that point will be for the Medicare/SSDI bus to roll by and pick them up.
It is ridiculous. It is ludicrous. It is complete and utter bullshit.
The concept of a medical cap completely runs counter to the spirit of the Grand Bargain, where employers agreed to care for their injured in exchange for limited liability. Opt out in Tennessee will mean that the commitment to care has a cap, while employers still attempt to hide behind protections written into the law. This is terrible legislation, and the people of Tennessee need to know what their elected representatives are up to.
SB721 originally offered a $300,000 cap on medical, but it was changed as part of the ongoing negotiations surrounding the bill. They should keep negotiating.
Opt out schemes have some pretty powerful promoters in our industry, but I remain unconvinced of both their fairness and long term viability. Oklahoma opt out, enacted within this past year, requires employers to offer benefits “equal to or better” than what is available under the state's workers' compensation system. “Equal to or better” may look good on paper, but Oklahoma employers almost unilaterally decide what claims are accepted and how the claim will be managed. Serious court challenges are before the system questioning the due process afforded injured workers under those plans.
Even putting the due process questions aside, I have to ask, do we really want multiple, tiered systems in this country? If you draw the opt out trend to its logical conclusion, we will eventually have different classes of injured workers' within the states that adopt this strategy. Similar to flying today, we will have First Class, Economy Plus and Steerage. Large and midsized employers may offer vastly different plans with different claim cultures attached to them. Small employers will never have that choice, and their employees will continue to be in whatever state plans exist after the change. It is not an equitable offering, and defies the intent of the protections of all parties originally intended with the creation of workers' comp.
And capping medical was never, ever, part of the deal.
The push for opt out is, in my opinion, a reaction to failures and shortcomings within our own system. I've prattled on ad nauseam about the need to improve our processes and to restore dignity to the severely injured worker. We need to get our house in order, so that cockamamie ideas cannot continue to flourish. An injured worker isn't a car. They shouldn't be subject to “being totaled” and sent off to the scrap yard. And neither should their protections resemble inadequate auto insurance, where we pay to the liability limitations and then they are done.
The fate of SB721 is not yet certain. It lost a largely symbolic vote Tuesday when the Tennessee Labor Management Advisory Panel voted unanimously against recommending the bill. Still, proponents are undeterred, and predict successful passage of the legislation. If it passes with that cap on medical obligations in place, the winners will be relatively evident and the comp system will have taken another loss. The biggest losers however, will be harder to identify.
They haven't been catastrophically injured yet.
Don't worry; they will be along shortly after. They will have a face, a name, a family and a shameful legacy of betrayal to contend with. Something for them to think about when they are sitting at the curb.
Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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