Column: Workers' Comp

News or Noise?

By: | March 2, 2015

Roberto Ceniceros is a retired senior editor of Risk & Insurance® and the former chair of the National Workers' Compensation and Disability Conference® & Expo. Read more of his columns and features.

Trial court judges in two different states ruled that workers’ comp exclusive remedy protections don’t apply. This raises the question: Is this something we need to worry about? There is continually information launched into the “stuffosphere,” but how much of it should we sweat over?

We all do our best to filter out the noise that clutters up the useful information out there, and these two legal cases exemplify why that is increasingly critical. These cases, pushed along by ample attention from pundits, have stirred workers’ compensation industry angst.

In one case, an Oklahoma judge ruled in mid-January that his state’s exclusive remedy law doesn’t provide a defense against foreseeable injuries. That followed an August 2014 ruling by a Florida judge who found his state’s exclusive remedy law unconstitutional.

I’ve heard that industry leaders are worried a similar ruling could surface in other states. While this is still more hype than an actual problem, such rulings could raise substantial coverage issues if they stick, an expert told me.

I’ll show my age by saying that pre-Internet I worked under a guideline that said unless an appeals-level court issued a ruling, it probably wasn’t worth writing about. If the case posed enough harm to employers and insurers, an appeals court would eventually let us know if claims payers indeed had something to sweat about.

No sense in pining for the old days, but there weren’t months of speculating and hand-wringing waiting for trial court decisions to wind their way through the appeals court process.

The Internet changed that.  Now, with many writers — some professionals and some doing great work while self-publishing — all looking for workers’ comp fodder to  fill pages, you find stories about trial court decisions, with their potentially dire consequences, told and retold before the appeal that you know is surely coming finally gets filed.

The Florida and Oklahoma decisions provide good examples of this.
Sure, it’s important to take note of the potential for exclusive remedy protections to slip away and a claimant attorney group vowing to take the fight to other states. Whether the risk of this happening is high or low, the severity could be devastating if it indeed occurs.

Many of the people writing about workers’ comp, meanwhile, truly understand their subject matter and excel at keeping us all informed.  They provide ample opportunity to keep abreast of industry trends and perhaps prepare us should the worst come about.

The work has value for a variety of reasons. Some of it is good for water-cooler conversations with colleagues who share an understanding of the subject matter. Some of it is priceless for providing a good chuckle when workers’ comp meets the absurd.

But there are many examples of stories suggesting potential crises ahead — crises that never happened.

A few years ago, for instance, many of us wrote about the potential for a new wave of claims due to increased mobile-phone use. While those claims do occur today, a tidal wave never emerged. Informed risk managers countered with rules prohibiting phone use while driving on company business.

Similarly, I suspect business interests will launch plenty of legal and lobbying resources to prevent exclusive remedy protections from eroding, whether in appeals court fights or in the lawmaking arena.

So more than ever, it’s important to view all the Internet-empowered pundit attention paid to various topics like this one by ceaselessly asking ourselves: “Is it worth sweating about this before an appeals courts renders its judgment?”

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