The attack on the California Workers’ Compensation system, being orchestrated by Gov. Arnold Schwarzenegger’s corporate think tanks, dramatizes the importance of workers’ comp in state politics. It also shows that the federalization of workers’ compensation must again become a major issue for federal legislation. Allowing 50 different governments to decide the fate of workers injured or made sick on the job is not good policy.
Reform in U.S. almost worked
A radical change almost came about in the 1970s, in the afterglow of the EPA, OSHA, the Civil Rights Acts and other federal actions. Congress, with intense pressure from the labor movement, attached action points for change when the federal OSHA law was passed in 1970. A National Commission on Workers’ Compensation was empanelled. After six years of meetings, they pointed the workers’ comp issue toward a federal solution, issuing 19 recommendations for each state’s system. Failure to comply would mean that state’s system will be subsumed under the Federal Longshore Workers’ Compensation Law, a very good law.
None of the 50 states complied. Even with a Democrat, Jimmy Carter, in the White House, the whole idea was dropped. The Chamber of Commerce and the National Association of Manufacturers gave high priority to defeating these reforms. The last thing they wanted was a federal workers’ compensation system linked to the federal Social Security system, including the federal Social Security Disability Insurance – SSDI. It would also have been indirectly linked to federal EPA and other worker protection laws. And it would make national health legislation a foregone conclusion.
Crisis at highest levels
In the years since then, the crisis which workers face when they are injured on the job has grown dramatically. But labor has generally been on the defensive in state capitals. Their main efforts have been directed at protecting the present system, with all its flaws, and not fighting to make it better. The truth of the matter is that the current workers’ compensation system does not begin to adequately address the actual deaths and disabilities that take place in our nation’s workplaces. This is especially true with regard to occupational injuries and diseases.
California’s anti-worker proposals
Just reviewing some of the backward legislative proposals being put forward by Schwarzenegger proves the point:
Fewer injuries and illnesses would be covered. Current California law does not restrict eligibility for workers’ compensation benefits based on the extent to which the worker’s job caused the injury or the disability (except for stress-related, psychological injuries). Injured workers with cumulative injuries (caused by repeated exposures) would be required to show that the injury was “substantially caused” by their current work. Those with injuries caused by one event would be required to show that the specific injury contributed at least 10 percent to the worker’s disability.
Employers would select the worker’s doctor. Current law permits workers to make their own choice of physician without any veto power of their employer. Under this proposal, they would not be allowed to pre-designate their personal doctors. The worker would not be able to change doctors 30 days after the employer learns about the injury.
Medical reports will go unchallenged. The worker’s right to challenge a treating physician’s medical reports will be severely curtailed.
“Independent Medical Review” determinations would be final and binding. The so-called independent medical review physician would not personally examine the disabled worker, only see medical reports. These decisions would not be subject to review.
Permanent disability benefits would be reduced or eliminated. The state’s 2002 reforms raised California from 49th to only about 40th in the nation in the level of workers’ compensation benefits provided to injured workers. Yet, even this small increase infuriated employers. Under the proposals from the new governor’s think tank anti-worker ideologues, these increases will only take effect when workers’ compensation costs in California are equal to or less than the national average.
Employers and every state government are watching these California developments closely. Killing these anti-worker proposals must be a high priority for California labor and its allies.
The author can be reached at pww@pww.org.
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