Terry Fleming's got guts. Standing before a ballroom filled with attorneys and insurance pros, the vice president of the Risk and Insurance Management Society suggested that to get lawyers out of the system, we should establish a nationwide law governing workers' compensation, administered by the states.
Terry, who I recruited as the keynote speaker for National Underwriter's National Trends program here at the annual Workers' Compensation Educational Conference in Orlando, knew his proposal would not be popular with this crowd.
"I have some things to say that might be less than politically correct," he warned right at the start of his speech. "But as long as you didn't bring anything sharper than ripe tomatos, I can take it."
Mr. Fleming–who revealed that an outrageous 70 percent of his comp claims are litigated–is fed up dealing with lawyers from both sides, insisting a federal law establishing national standards for compensability and claim dispute resolution is the only way to squeeze litigation out of the system once and for all.
"It's not just plaintiff lawyers who benefit from the current system, but defense firms, too," he said. "There are a lot of people who have a big stake in the status quo."
If he had his way and could unilaterally implement what he called "Terry's wish list" for comp reform, Mr. Fleming said he would establish lawyer-free administrative hearings to resolve conflicts over claims, rather than allowing the parties to take their case to court.
He said he would also have Washington allow all employers nationwide to take advantage of some of the cost-containment methods routinely tapped in group health insurance, including direction of care to preferred providers who specialize in comp cases and return-to-work programs, as well as drug utilization standards and price negotiations with comp carriers and self-insureds.
He also called for an end to "dueling doctors," in which attorneys for both sides in a comp dispute send a claimant to their own specialists, who come to predictably opposite conclusions about the case depending on who is paying the bill.
Mr. Fleming realizes how quixotic his quest truly is to expect Congress–filled with lawyers and influenced by the trial lawyers lobby–to pass a law forcing litigation out of the state workers' comp system.
"I realize not many of these recommendations are likely to be embraced," he confessed. "But it's important to at least begin a conversation about them."
However, he sees a glimmer of hope in H.R. 635, a House bill that would mandate a federal review of state comp laws–a study not done since the Nixon administration 40 years ago. But with only five co-sponsors and lots more pressing issues on the congressional agenda, "I don't think it's going anywhere this year," he acknowledged.
Mr. Fleming, who emphasized that he was speaking for himself alone and was not stating official RIMS policy on these issues, expressed frustration in trying to manage loss control and claims programs as director for the Division of Risk Management in Montgomery County, Md., which employs some 40,000–including high-risk professions such as police, fire fighters and prison guards.
Mr. Fleming said he is under no illusion about the handicaps he faces in his public sector job, given the realities of elections and union power to make or break those legislators considering reforms to the comp system.
"There is a lot more politics in local government that I would like to admit," he said. "Union members vote, and public officials are elected, so changes are hard to come by in workers' comp law."
Yet he hopes the country's mood will change in time, especially if litigation keeps gumming up the system and raising costs.
"When workers' comp was created, there was supposed to be a tradeoff–employers would provide full medical coverage and partial pay while an injured worker recovered, and the claimant would not sue," he recalled. "That bargain is dead or dying in most areas of the country."
I admire Mr. Fleming for telling a potentially hostile crowd exactly what it did not want to hear. And with health care reform dominating the political agenda in Washington, might some member of Congress be tempted to sneak a few paragraphs into the 1,000-page bill setting national standards for comp medical claims?
Still, even Mr. Fleming must realize his proposal is a non-starter. The Democrats, backed by the plaintiff lawyers and most unions, are not likely to allow such a provision into the final health care reform bill. And I doubt Republicans have the gumption to force the issue.
What do you folks think?
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