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ORLANDO, FLA.--Terry Fleming, Risk and Insurance Management Society vice president, told an industry conference here that federal legislation is needed to standardize the payment of workers' compensation awards.

Fleming, risk manager for Montgomery County Maryland, which averages 2,163 workers' comp claims a year, suggested that "a national workers' compensation law administered by the states" could "eliminate a lot of litigation and save money for all sides."

His comments came in a wide-ranging address at the Workers' Compensation Educational Conference presented by the Florida Workers' Compensation Institute in partnership with The National Underwriter Company.

Under such a proposed law, he said, disputes over the cause of an injury or disability rating would be handled by an administrative procedure based on submissions with an appeals process only for findings that were "egregious."

He said he also would like to see a process that eliminated "dueling doctors" testimony from employer- and employee-hired physicians as well as requirements for employees to use employer pharmacy and medical treatment plans if they provide equal or better care.

Fleming's talk ended with polite applause from conference attendees who include a large number of plaintiff and defense attorneys, even though he said his comments "may be less than politically correct for this crowd."

He said the fundamental premise of workers' comp laws enacted in the 1900s--that were enacted as an exclusive remedy providing medical care and wage replacement in return for eliminating litigation--"is dead or dying."

In Maryland, Fleming said the law actually encourages litigation because the plaintiff's attorney doesn't get paid unless there is an award of permanent partial disability benefits.

Maryland's litigation rate is 36 percent--double the national average--and his county's rate is more than 70 percent, "which is incredible." He blamed this on county employee unions, the plaintiff's bar and defense lawyers who "also have a big stake" in litigation.

Besides litigation, Fleming discussed other workers' comp system challenges for public entities, citing budget issues as one of them.

Unlike the private sector, it is difficult to make managers responsible for the cost of poor safety and high claims rates when services must be provided, he said. Police and roads departments can't be told they must curtail patrols or stop building a road because of workers' comp costs, and many in charge "consider injuries as part of doing business."

After years, Fleming said, he has been able to improve matters in his county, helped by Web site postings of lost time claims for each department along with the cost per $100 of payroll. He also had directors hold regular public meetings with the county's chief administrative officer to explain what they are doing to reduce workers' comp claim costs.

Another challenge, he said, is a section of workers' comp law dealing with public safety employees, which states that when they develop cardiovascular diseases or cancer, the burden of proof is on the employer to show their illness is not work related.

In addition, employees can even file claims after they have retired or taken other work. He said Montgomery has had workers who have been "retired 10, 15, 20 years and moved on to other jobs and they come back and hit us [with claims]."

Fleming voiced criticism of the National Council on Compensation Insurance's setting of comp insurance rates in the state for failing to include data from self-insured public entities.

The result, he said, is that loss projections are lower, leaving the states' workers' compensation commissions free to award higher benefits on claims involving self-insured public entities.

Lori Lovgren, state relations executive with NCCI, said all claims are "judged by the same round of [compensation] judges, and less efficient systems are the ones that pay more."

Giving an overview of federal legislation and federal executive branch action, Fleming mentioned that President Obama has recommended changes for the Occupational Safety and Health Administration agency which is a very controversial area. He said RIMS will have a position when it learns what rules' changes are being proposed.

He noted that RIMS is supporting a ban on using silica sand in blasting operations because of the high incidence of silicosis among workers in that field. The RIMS organization, he said, is urging OSHA to adopt the ban.

Fleming said RIMS is closely watching a proposal to create a National Commission on State Workers' Compensation to study the adequacy of state laws. The measure, he said, has strong employer opposition. He promised, "We'll keep a close eye on it."

Fleming said RIMS has taken no position on the Employee Free Choice Act, which would make it easier for worker union organizing activity.

Special Reports /

RIMS Exec Calls For National Comp Law

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