A Few More Bales on the Workers Comp Truck

(Note: This is a column appearing in the Knoxville Business Journal.)
Jeb Bush, appearing with Bill Haslam at a two-man January education forum in Nashville, offered the opinion that “bigger is better” in a gubernatorial reform agenda.
“If it isn’t controversial or hard to do, you probably needed to add a few more bales of hay on the truck,” Bush said. “If you’re focused on pleasing the people who are there all the time (in state government or the Legislature), you’re going to be tweaking workers’ compensation.”
Haslam promptly quipped in reply: “Careful … Now you’ve gone from preaching to meddling.”
Unbeknownst to the former Florida governor, the present Tennessee governor had been hatching – some folks call the Haslam approach “task forcing” – a plan for workers’ compensation reform for the past year or so.
Haslam formally announced the gist of his proposal in his “state-of-the-state” speech on Jan. 28 to the the 108th General Assembly.
The proposal is pretty big, insofar as workers’ compensation goes in Tennessee. Far more reaching than the last reform effort, presided over and pushed through a Democrat-dominated Legislature by Democratic Gov. Phil Bredesen almost a decade ago.

Now, you can find folks who thought bigger would be better for the Haslam bill. Senate Republican Caucus Chairman Bill Ketron, who as an insurance agent has been writing workers’ comp policies for more than three decades, says his wish list would have included addressing complex classification issues, for example.
“But that’s for another day,” Ketron said. “It’s a great step forward, something long past due.”
What’s long past due, in the eyes of most business interest advocates, is the centerpiece of Haslam’s proposal – minimizing the court system’s involvement.
There’s also the interrelated provision in the present statute that says courts are to “liberally construe” the law, basically giving the benefit of the doubt to the injured worker and the legal definition of when a worker’s injury is covered, which critics say is tilted toward allowing compensation in cases where an old softball accident is suddenly eligible for payments on a new employer’s policy.
Without getting into the details – extraordinarily complex for a layman – the definition is changed to where the cause of a compensable injury or ailment must be at least “primarily” – 50 percent is the interpretation – due to the job. The liberal construction is dropped.
Claims would go to a new independent panel that would oversee the entire process, according to the proposal.
The court system would get involved only after an administrative law judge in the Division of Workers Compensation, housed in the Department of Labor and Workforce Development with a boss appointed by the governor, had made its decision. Then there could be an appeal – but it’s widely assumed that a fouled-up decision warranting a successful appeal to the courts would be a rare thing.
Jim Brown of the National Federation of Independent Business says that only Oklahoma now has a pure court-based system of resolving workers’ comp cases – and its legislature is considering a complete overhaul. New Mexico has a hybrid of sorts, which is somewhat akin to Tennessee’s system after Bredesen’s revisions that mandate compromise efforts before going to a judge.
Business interests have long argued that the courts’ involvement increases litigation and costs. When Tennessee is competing with other states for business investment, prospects evaluate the state’s workers’ comp laws.
Bredesen pushed through his bill despite strident objections from key constituencies of his own Democratic party – labor and trial lawyers – in a General Assembly where Democrats still had a majority.
Haslam has no such problem with the reigning Republican supermajority.
His bill is assured of passage as the second major step in the GOP vision of a more business-friendly Tennessee. The first was Haslam’s tort reform effort, which was assured of passage in a 2011 legislature that was ruled by Republicans, though with Democrats still holding some leverage.
Trial lawyers and labor do not like the Haslam plan, seeing it as a new means of putting businesses’ bottom line ahead of injured workers facing a lifetime of anguish.
House Minority Leader Craig Fitzhugh, D-Ripley, observes that Haslam’s proposal also creates a “new level of bureaucracy” at a net estimated increased cost to state taxpayers of $600,000, according to the Haslam administration estimate.
The governor says, however, that he’s open to revisions and will listen – perhaps accommodate – reasonable changes that don’t interfere with the central premise of making Tennessee business friendly compared to other states.
That’s rather like his approach to tort reform: The governor has not bought fully into the bigger-is-better.
What he proposes isn’t too controversial and it won’t be hard to do because it pleases the people who are there. And if a few more bales are tossed onto the Haslam worker comp truck, they’ll probably come from legislators and not the governor.

Leave a Reply