Column: Workers' Comp

Opt Out and the Rhetoric Rift

By: | December 14, 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.

It’s been interesting observing the rhetoric wielded in the battle for public opinion, fought over whether to allow employers to leave behind state workers’ compensation systems.

“Opt-out” proponents talk about “The Option,” which they say would let employers create alternative injured-worker plans that ensure employees receive the best possible care — better than under current state workers’ comp systems.

They tout opt-out plans as free enterprise arrangements and they promise to openly share data on the positive medical outcomes achieved.

Critics counter that efforts to “kill” current workers’ comp systems would reduce employer costs by slashing benefits and preventing injured workers from filing claims that are currently compensated.

Opt out, opponents say, would create one-sided systems with employers controlling medical treatment, indemnity amounts and the appeals process, while obfuscating data on the treatment of injured workers.

Rhetoric wielded to shape legislative outcomes is common when interest groups vie to win their vision of how state workers’ comp systems should operate. But it feels different this time, perhaps because of the stakes.

Normally, battle lines form over legislative proposals that are limited to remedies for specific problems within state worker’s comp systems.

Rhetoric wielded to shape legislative outcomes is common when interest groups vie to win their vision of how state workers’ comp systems should operate.

The rhetoric in the opt-out war, however, seeks to influence opinions about the fundamental value that workers, employers and society derive from existing workers’ comp systems.

Ideally, proponents would like to win the right to exit workers’ comp systems nationwide and implement entirely different mechanisms, not mend the old.

Newspaper opinion pieces, blogs and conference presentations have all been drafted into the war of words with public relations firms and lobbyists conscripted into the effort.

The result has been the likes of a newspaper editorial written by insurance agents in Tennessee, where opt-out proponents are trying to expand their reach.

The agents’ opinion piece warns of “threatening consequences for the state, its business environment, businesses and workers,” and says the current program is “fundamental to Tennessee’s positive business climate.”

For the other side, the Association for Responsible Alternatives to Workers’ Compensation (ARAWC) counters that opt out “can deliver better medical outcomes and higher satisfaction for injured workers without the cost and administrative burden of traditional workers’ compensation.”

I can’t blame employers for funding ARAWC and thinking they can do better outside workers’ comp systems that pile costs, litigation and administrative burdens on them.

But unfortunately for their side, most published articles and blog postings — as of the writing of this column — report that injured workers would get a raw deal without fair representation of their interests. There have also been reports that Democratic lawmakers in Washington want a federal evaluation of workers’ comp nationwide, in part because of concerns that certain practices, potentially including opt out, shift costs onto public programs.

The news reports and blog postings do not support the narrative opt-out proponents prefer. But that is not a death blow to their closely watched efforts.

Who knows where this will go as political battles over opt-out legislation continue into next year. But you can expect the rhetoric will continue.

Workers’ comp is a complicated topic, hard for politicians and the general public to comprehend. Rhetoric, on the other hand, conveniently simplifies it for them. It doesn’t require the deciphering of facts and it tugs at the emotions rather than raising questions requiring deeper analysis about the future impact on everyone.

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