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Independent government and private-sector research and upcoming oral arguments in a highly anticipated case are raising questions about the equity of the U.S. workers compensation system and the long-term viability of exclusive remedy provisions.
On Wednesday, the Occupational Safety and Health Administration released a report examining the toll workplace injuries and illnesses exact on society. The report concludes that accumulated changes in the states' workers comp programs have shifted the costs of treating injured workers away from employers, which now provide about 20% of the financial cost of treating workplace injuries and illnesses through workers comp.
“The workers compensation systems created in each state were originally intended to have employer-provided insurance reimburse workers for lost wages while providing first-dollar medical coverage and rehabilitation for work-related injuries,” OSHA said in the report. “In reality, the costs of workplace injury and illness are borne primarily by injured workers, their families and taxpayer-supported safety-net programs.”
Also Wednesday, National Public Radio and Pro Publica Inc., an online investigative journalism website, detailed deficiencies in the workers comp system through the struggles of two workers: one paralyzed as a result of a warehouse accident and one who lost a hand in an oil rig explosion.
The comp system has evolved to put the interests of employers and insurers over injured workers, the NPR/ProPublic report concluded.
Separately, attorneys are readying for oral arguments at the end of March before the Florida Court of Appeals for the Third District in a much-watched case, The State of Florida vs. Florida Workers' Advocates et al..
The state is appealing Miami-Dade Circuit Court Judge Jorge Cueto's ruling last August in which he declared the state's workers compensation system unconstitutional because changes made to it mean it no longer provides “an adequate exclusive replacement remedy” in place of common-law torts.
“I think everybody's every interested in this Florida case,” Trey Gillespie, Austin, Texas-based senior workers comp director at the Property Casualty Insurers Association of America, said of comp insurers.
The concern is that if Judge Cueto's ruling stands, it could provide a template for attorneys looking to attack exclusive remedy provisions in Florida and elsewhere.
“Obviously there will be attorneys in other states who will be watching this case to see if it was successful,” Mr. Gillespie said.
A group of workers compensation attorneys representing two injured workers has asked the Oklahoma Supreme Court to declare the Oklahoma Employee Injury Benefit Act unconstitutional.