April 13, 2012

Maine Voices: Proposed workers' comp changes balance needs of all involved

Maine's current law puts the state out of step with the rest of the nation.

By PETER M. GORE

AUGUSTA - In Tuesday's Maine Voices column, Richard Wuerffel describes a workers' compensation proposal that has been the product of more than a year's worth of conversation in the Maine Legislature. His description is inaccurate and a one-sided review of this important piece of legislation.

The current proposal is an attempt to fix a part of Maine's workers' compensation law that is unworkable for both employers and employees. It springs out of the work of task forces that were created by former Govs. Angus King and John Baldacci. Last year, with the introduction of L.D. 1571, there began another attempt to fix the flawed law.

At the instruction of the Legislature, a group of stakeholders to the workers' compensation system, including myself, met through the summer and fall in an attempt to find common ground on the issue.

While our group found some commonality, we were unable to reach consensus on how to treat injuries that cause a "partial incapacity." Organized labor sought to maintain the current system, which guarantees large workers' compensation settlements even for partially incapacitating injuries. The employer community sought a cap similar to those used in most states on the wage replacement benefit for all employees partially incapacitated and an end to the existing law that purports to allow one in four Maine workers to be eligible for lifetime partial weekly benefits based on the nature of their injury, not on their ability to work.

L.D. 1571 was killed by the committee as too Draconian for employees. A new proposal emerged offering an increase of $70 per week in the maximum rate that a worker could earn for wage replacement benefits, a change in how benefits will be calculated that will result in further increased benefits for some workers and continued use of the existing 520-week cap on partial incapacity benefits without any eligibility for lifetime benefits. Yet a further compromise was proposed and eventually approved by a majority of the Labor, Commerce, Research and Economic Development Committee last week. This final version was a direct result of requests by labor to ensure protection of those most seriously injured workers in the system.

In addition to the benefit increases and cap of 10 years for partial incapacity benefits, the new proposal creates two safety nets for workers affected by their workplace injury after 10 years of payments. First is a financial hardship provision which allows any worker to appeal directly to the Maine Workers' Compensation Board if their injury continues to have a significant negative impact on their ability to make ends meet. Second, for those with serious injuries who are working part time, the bill provides extended benefits (past 10 years) for those earning less than 50 percent of their pre-injury wage.

Under this proposal, Maine workers with partial incapacity injuries would continue to be eligible for 10 years, or 520 weeks of benefits. Only one other state in New England, Connecticut, offers that same amount. No other state offers the same extended safety net that is proposed in this bill.

So why now seek these changes? The current law with respect to partial incapacity benefits is broken. Since 2006, the workers' comp board has been unable to comply with the law that requires it to make adjustments as to who is and who is not eligible for lifetime partial weekly benefits. In reality, the current law is unworkable as written. Since the mid-1990s, stakeholders have recognized the problems with this portion of our law but kicked the can down the road when it came to trying to fix it. We think this proposal is a reasonable attempt to bring a balanced solution to this problem.

Furthermore, this section of our law is a magnet for litigation -- which while greatly helping trial attorneys to grab big settlements -- may not help the injured workers get back to work and recover their life fully.

The law as written makes Maine an outlier. No other state guarantees that 25 percent of all injured workers -- regardless of their ability to work -- may be eligible for lifetime benefits. This proposal brings Maine in line with the vast majority of other states.

Lastly, despite Mr. Wuerffel's assertions, Maine remains a high-cost state when it comes to workers' compensation. Although costs have declined, Maine is still a state with high workers' compensation costs: NCCI places Maine in the top 10 of the most costly states they rate, and the most recent Oregon study ranked Maine as having the 9th highest costs.

Maine employers want a system that works for both employers and employees, one that protects those most seriously injured and encourages and assists injured workers in going back to work quickly.

These debates are never easy, and the type of scare tactics employed by Mr. Wuerffel doesn't help. We are all in this together as a state, and we can and must continue to improve upon the laws we have to move our state forward.

Peter M. Gore is vice president for advocacy and government relations at the Maine State Chamber of Commerce.

 

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