National Workers’ Comp Trends

By Jason Weinstock on December 6, 2013


   Las Vegas again hosted the annual Larson’s National Workers’ Compensation Advisory Board Meeting at the National Disability and Workers’ Compensation Conference  in November..  Advisory board members are attorneys though out the United States who either post blogs, or write expert commentary on the laws in their home states.  These attorneys also participate in discussions and debate with each other about current developments and practice trends in workers’ compensation law.       Lex Larson, on the Executive Committee for the Advisory Board,  is one of the current authors, and the publisher of the most authoritative multi-volume treatise on workers’ compensation law.    Representing Nevada, I was mostly surrounded by attorneys who represent employers and insurers in their states.   This is always a good opportunity for me to hear a more balanced view of what is happening nationwide to workers’ compensation laws. 
     We discussed that while each state has its own system to address the needs of injured workers, the following trends were important in almost every stated:  1. Use of outside utilization review companies to review requests for medical procedures and expensive diagnostic testing, 2. Problems with opioid medication to control pain, 3. Medical marijuana, 4. So-called evidence based medicine, and 5. Increased medical costs of claims.   
    The discussion really became interesting though when the Texas defense attorney suggested that studies showed higher injured worker satisfaction with their claims experience overall under Texas’ opt-out system.  In Texas, an employer is not required to purchase workers’ compensation insurance to cover injuries and occupational diseases of their employees.  An employer can instead purchase a type of health insurance and can choose the rules.  ( There are no permanent partial disability awards in Texas.)  Texas exported its opt-out philosophy to Oklahoma, whose legislature decided that it didn’t want Texas’ economy outpacing Oklahoma’s economy.
     Debate between the claimants’ attorneys and the defense attorneys was  whether employers were shifting the cost of workplace injuries more directly to society and taxpayers without first paying for work injuries as a cost of doing business. Some argued that our Medicare and Medicaid systems should not bear the cost of work injuries.        While most states were not ready to hop on the opt-out band wagon, there is a trend is for other statutes to experiment with "carve-outs" to its systems.   In California and Illinois, for example, unions have successfully obtained legislation allowing for the same benefits, but different administrative processes that are supposedly more favorable to union members.  A New Jersey attorney spoke about an iron workers’ union in his state wanting a carve out from their traditional laws to afford union members greater choice of physicians and higher benefits.  Nevada passed a carve-out law for unions years ago, but not much has come of it. 
      Final comments from Lex Larson were that the traditional workers’ compensation systems in the various states were threatened by a sense of competition among states for new business, and opt-outs and carve-outs were becoming more attractive.  He also attributed this trend to the recent dominance of conservatism in our county.