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IT WILL BE REMEMBERED WORKERS' COMP LAW ADOPTED FOR THE
Publication: THE CHARLESTON GAZETTE
Published: Monday, March 13, 1995
Byline: Cecil Roberts
We are now in the process of seeing one of the meanest pieces of legislation in decades become law.
A PIECE of history is being made.
But when the working men and women of West Virginia realize what happened to them, more history will be made. That will be when the rich and powerful learn they can't fool our people.
We are now in the process of seeing one of the meanest pieces of legislation in decades become law. It is because Gov. Gaston Caperton and the legislative leadership rammed a disastrous workers' compensation bill down the throats of our people.
In an unprecedented move, there was only one public hearing on this 180-page bill - just one day after it was introduced.
Caperton and legislative leaders trampled on our democratic traditions in their rush to "solve" the workers' compensation problem even before the people had an opportunity to respond.
Like the legislative pay raise, this action will be remembered.
The rationale give by Caperton and legislative leaders for rushing this bill to passage is a huge unfunded liability of $1.85 billion. They say Workers' Compensation premiums are so high employers can't be asked to help pay this debt without making them uncompetitive with other states.
The problem with this argument is it's untrue.
The level of premiums paid by West Virginia employers is 46th in the nation. Only South Carolina, Wyoming, Virginia, North Dakota and Indiana employers pay less than those in West Virginia.
Well, then, aren't West Virginia benefits too high? No, they're smack dab in the middle of all benefits paid nationally. West Virginia ranks 26th. Moreover, premiums paid by each West Virginia industry are comparable to or lower than neighboring states, including Kentucky and Ohio.
Now let's look at that unfunded liability of $1.85 billion as calculated by the Workers' Compensation Fund actuary.
More than half is directly related to breaks given big businesses by former Gov. Arch Moore in the mid-1980s, when he artificially kept premiums 30 percent below the level indicated by actuaries. That created a $570 million deficit.
Also, $400 million of the deficit resulted when self-insured employers dumped disabled claimants into a second-injury fund at no cost to them. But these issues aren't even discussed.
This proposed Workers' Compensation bill hurts the weakest of our society. Here are some examples: It takes away the two years of benefits widows now receive upon the death of totally disabled spouses. Cynically, it requires an injured worker himself to finance the widow's benefit - and then cancels that benefit if the worker dies after retirement age.
It cuts off benefits entirely for permanently disabled workers at retirement age. This leaves them only with reduced Social Security benefits - reduced because they were injured and unable to earn wages during their last working-age years, the basis upon which Social Security benefits are calculated.
It deprives injured workers of their choice of doctors.
After their initial doctor visits, workers whose employers have managed-care programs will be forced to go to doctors chosen by their employer for treatment.
Many West Virginia workers living near our borders obtain their health care from providers in neighboring states. But unlike West Virginia's public employees and most other state Workers' Compensation systems, these border workers will have to personally pay out-of-state doctors' fees and other medical costs above the level paid by West Virginia's Workers' Compensation Fund.
The bill infringes on a worker's right to privacy by permitting employers to call a claimant's doctor to ask not only about an injury but also about personal medical history, including whether he or she suffers from diabetes, heart problems or other personal medical difficulties. This overturns a state Supreme Court decision protecting an injured worker's right to medical privacy.
It permits the Workers' Compensation commissioner to use the resources of that agency to fight claims while also selecting members of the medical panel that will determine total disability claims.
At the same time, legal standards for appeals are restricted.
Judges and the appeal board, who decide cases on appeal, will have their independence slashed with their budgets being placed administratively under the commissioner.
Thus a gruesomely biased, slow process is wholly politicized.
Some politicians have sought to give the impression this bill only deals with fraudulent claims and excessive permanent total disability cases. The administration's own estimates, however, indicate the bill will reduce total workers compensation benefits paid in this state on a yearly basis by one-third!
This bill affects the way every worker's claim will be processed in the future. Its reduction in permanent total disabilities accounts for only one-third of the amount of money the administration claims it will save.
This is not a narrowly crafted new law aimed at getting the cheaters out of the system. It's aimed at everyone unfortunate enough to be hurt at work. And more than half of all working West Virginians are hurt at work at some time in their lives.
All this is easily verifiable. Yet these basic facts have been consciously ignored - ignored because the rich who control West Virginia want to ram these changes down our throats.
Are there problems with workers' compensation? Yes. But it is grotesque to believe all the economic cutbacks should be placed on the backs of injured workers. Or that employers who benefited to the tune of hundreds of millions of dollars in the past should make no significant contribution to the deficit.
We will remember this as one of this decade's most extreme examples of the rich using government to benefit themselves at the expense of average West Virginians.
This history will be remembered.
Roberts is international vice president of the United Mine Workers.