RIMS Exec Calls For National Comp Law To Reduce Litigation, Standardize Benefits

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

He said he also would like to see a process that eliminated "dueling doctors"–referring to conflicting testimony from employer- and employee-hired physicians. "I pay over $350,000 a year for independent medical exams on disputes over the amount of permanent partial disability," he noted.

If he had his way, Mr. Fleming said he would also tie workers' comp medical benefits to Medicare rates, or at least require employees to have work-related injuries treated within their group health plan networks "if that saves money and provides equal or better care."

Mr. Fleming–who emphasized that his remarks represented his own views and not the policy of RIMS–drew polite applause from a ballroom audience that included a large number of workers' comp plaintiff and defense attorneys.

Before making his proposals, he said early in his speech that some of his suggestions "may be less than politically correct for this crowd. But as long as you didn't bring anything sharper than ripe tomatoes, I can take it."

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

In Maryland, Mr. 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 said, blaming this on county employee unions that "market their preferred plaintiff law firm," as well as the self-interest of defense attorneys.

"It isn't just plaintiff lawyers who have a stake in workers' comp litigation," he said. "There are huge defense firms that handle nothing but comp work. Clearly, both sides benefit by the status quo."

"I realize some of these recommendations are not likely to be embraced," he said. "The same stakeholders that would prevent a federal comp program would work hard to defeat any movement in the direction that I propose."

However, he added, "at the fundamental level, it is employers who pay 100 percent of the comp system's costs, yet it appears to me that the employer is having the least impact on the system."

Besides litigation, Mr. Fleming discussed other comp system challenges for public entities, citing budget issues as one major risk management hurdle. Unlike in the private sector, it is difficult to make public entity managers responsible for the cost of poor safety and high claims rates when services must be provided, he said.

"How do you tell the police department that you are cutting patrols or traffic management to pay for comp claims that have occurred?" he said. "How do you tell the Department of Transportation that they can't finish a roads project? Obviously, services must be provided, and consequently many in leadership roles in public entities consider injuries as part of doing business."

Mr. Fleming said it took 10 years to convince his County Council that "accident prevention is the key to reducing workers' comp costs," and since that realization, he has been able to improve loss control, helped by Web site postings of lost-time claims for each department along with the cost-per-$100 of payroll.

He also has agency directors hold regular public meetings with the county's chief administrative officer to explain what they are doing to reduce workers' comp costs.

Another challenge, he said, is a section of 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 the illness is not work-related.

In addition, employees can 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, yet they come back and hit us [with claims]."

Mr. Fleming mentioned that President Barack Obama has recommended changes for the U.S. Occupational Safety and Health Administration involving workplace safety. He said RIMS will have a position when the organization learns exactly what rule changes are proposed.

Mr. 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 noted that RIMS is supporting a ban on using silica in blasting operations because of the high incidence of silicosis among workers in that field, adding that RIMS is urging OSHA to adopt the ban.