Saturday, June 2, 2018

Peter Rousmaniere on Four Injured Worker-Friendly Reforms

            According to columnist Peter Rousmaniere, a movement exists in the insurance community which promotes the adjuster as not just passive dispenser of checks and payer of bills, but instead as a proactive “claims advocate.” Adjusters in the present day, he says, “want to be on the side of the injured worker as he or she tries to navigate the medical system, keep her home life in order, and return to work.” He applauds this movement (he refers to claims professionals, but the rhetoric seems also to be that of the nurse case manager community) and suggests that perhaps state legislatures can similarly act in an enlightened manner and change aspects of workers’ compensation laws that are “unexamined, outmoded, [and] sometimes indefensible.” Peter Rousmaniere, Walking in the Shoes of the Injured Worker, IAIABC Perspectives, p.18 (March 2018).

            Of note is that in developing his thesis, he cites with sympathy some of the aspirational 19 recommendations of the National Commission, a set of advisories that many in the present day (usually without explanation) claim to be obsolete.

            What, in any event, are these unsatisfactory items that Rousmaniere identifies? They are not complex, he notes, like trying to make permanent partial disability awards accurate and adequate. Instead, he claims, they are fairly simple.

           First, persuaded by recent studies, Rousmaniere would do away with employer control of medical treatment. One study, in this regard, showed no real savings by employers when they get to pick the claimant’s physicians, and another actually shows that litigation may increase in employer-control jurisdictions. Instead of lists and employer control, perhaps the better way to address overutilization and other abuses is better injured worker and provider education. “And,” he adds, “utilization review, drug formularies, and other mandated programs may be better ways to improve the quality of care than employer choice laws….”      

            Second, Rousmaniere would follow the National Commission recommendation and either eliminate or drastically cut back waiting periods to just a few days. He acknowledges the traditional employer anxiety that waiting periods are necessary to curtail fraudulent claims, but seems unimpressed by that concern. (My own concern would be not outride fraud but exaggeration.)   The other justification (new to this writer) was that they “were a recognition of built-in delays in reporting and response.” Regarding this concern Rousmaniere has only contempt: “A supervisor’s smartphone can, within minutes of the incident, take and transmit a video of the site of an injury to the claims organization. Immediate triage by phone or telepresence tells the claims payer much of what it needs to know about the injury.”

            Third, Rousmaniere endorses the National Commission thesis that wage replacement be adequate so that the injured worker and his family can keep house and home. The National Commission in its studies discovered replacement rates as low as 30%, and recommended that states set the benefit as a percentage, to wit, “at least 80% of the worker’s disposable income, that is, income after taxes.” Rousmaniere, however, thinks that the figure should likely be higher; after all, the worker, when he goes off work, must still pay for essential benefits such as health, dental and short-term disability.   “It appears,” he declares, that “many workers can’t afford to be injured…. No state to my knowledge has ever looked unto the shortfall problem with the exception of Texas…. [T]hese issues are researchable.”

            Fourth, Rousmaniere would alter the how maximum compensation payable rates are established, rates which in most, if not all, states, are still figures well below the National Commission-recommended 200% of the jurisdiction’s Statewide Average Weekly Wage. Rousmaniere seems to endorse the approach of the Canadian policy wonk Terry Bogyo, who “says they should be based, not on average wage, but on a percentile of wages in a state. A 90th percentile cap would mean that weekly wage replacement could not exceed the gross wages of the 90th highest paid worker in the state. Bogyo notes that labor economists figured out how to calculate wage percentiles 40 years ago, but no state has converted to this method of designing a cap.”

 

 

http://lawprofessors.typepad.com/workerscomplaw/2018/06/peter-rousmaniere-on-four-injured-worker-friendly-reforms-.html

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