Why HR-5309 Will Damage Workers' Compensation

Saturday, July 29, 2006 | 0

By Jon Gelman

The proposed legislation is both conceptually flawed and substantively contrary to legislative intent of the workers' compensation system established throughout the United States. The enactment of this legislation will strip injured workers of benefits that they have been entitled to since 1911.

HR 5309 was introduced during May 2006, by a group of Florida Republican legislators in an effort to modify Medicare Secondary Payer and Workers' Compensation Settlement Agrements in a fovorable fashion to employers and their insurance companies, http://thomas.loc.gov/cgi-bin/query/F?c109:1:./temp/~c109gaOY59:e1267:

The State based workers' compensation systems were conceived as an administrative process to provide benefits, in a summary fashion regardless of fault, to injured workers who suffer work related diseases and conditions as a result of employment. The programs were implemented by individual States and included the provision of adequate medical care to the injured worker as soon as possible following the accident or manifestation of the illness. Coexistent with the right of medical care is the requirement for the payment for medications. The employer is required to furnish to the employee reimbursement for all medication that is necessary for the employee's medical care and that is ordered by the authorized treating physician. Medical monitoring, on occasion, may be ordered for latent medical conditions.

For years, workers' compensation insurance carriers have been shifting the burden of medical costs and their responsibility to the Medicare system. The method utilized for shifting the cost is to enter into a lump sum settlement of the pending workers' compensation claim in an attempt to compromise the pending claim and avoid the insurance company's responsibility for the payment of medical treatment in the past, present and into the future. The resolution is not actually a payment of workers' compensation benefits, but rather a lump-sum settlement or compromise of a pending claim.

This scheme was effectively utilized by insurance companies for decades, transferring billions of dollars of responsibility from workers' compensation insurance carriers to the Medicare system. In July of 2001, Medicare, after several investigative reports were issued by the Government Accounting Office, promulgated a system to review the proposed dispositions and guard against cost shifting from the workers' compensation carriers to the Medicare system. Over the last few years, Medicare has been recouping conditional benefits under the Medicare Secondary Payer Act and has been reviewing lump sum compromises in an effort to protect the financial security and the fiscal integrity of the Medicare system from looting by workers' compensation insurance companies.

HR-5309 is an attempt to legitimatize the process by the insurance carriers so they can continue to avoid payment of workers' compensation benefits by merely compromising their responsibility and permits them to continue cost shifting to the Federal government. As medical costs continue to spiral, workers' compensation insurance carriers will continue to shift responsibility and erode the workers' compensation system and its financial integrity in logarithmic fashion. HR-5309 is an assault upon workers' rights to adequate medical care as a result of work related accidents and injuries and it is an attempt to merely shift the burden of responsibility from the employer and its workers' compensation carrier on to the Federal government. This legislation is a major step backwards in protecting the health, safety and rights of injured workers.

Jon L. Gelman, who practices in Wayne, NJ, wrote Workers' Compensation Law 3rd Ed. (West-Thompson 2005), is co-contributing author of Modern Workers Compensation-National Treatise (West-Thompson 2001) & is past Vice-President of the national Workplace Injury Litigation Group - Association of Trial Lawyers of America. Jon L. Gelman, 1450 Valley Road, P.O. Box 934, Wayne, NJ 07474-0934, Voice: 973.696.7900, Fax: 973.696.7988, e-mail:jon@gelmans.com, Internet:www.gelmans.com
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