In reviewing workers’ compensation legislation since 2010, when the conservative majority took over the government in North Carolina, in Part I it was noted that Deputy Commissioners (administrative law judges) will lose their job security, effective July 1, 2015, and that insurance policies can be cancelled easier to help out general contractors, but what else has been passed?
Previously, if a worker was totally disabled for life he got lifetime disability (recognizing that there is no cost of living adjustment in future years and there is a cap on the dollar amount of weekly benefits he could get). In 2011 the legislature limited benefits to 500 weeks (9.6 years). Brain injuries and other catastrophic injuries can continue beyond 500 weeks, but if the employee is still disabled and outside these exceptions, what happens? The insurance company is off the hook, and the taxpayer starts paying the price of the injury through social programs. The employer also gets a 100% credit on workers’ compensation for any Social Security retirement benefit the worker may receive.
An insurance company can now seek an “independent” medical exam, even though the claim has been denied. If an employee wants to be seen by a physician of her choice to review a permanent disability determination made by the insurance company’s selected physician, she can do so but the Commission is directed by legislation to “either disregard or give less weight to” any opinions that are not related to the impairment issue. The 2011 legislature required the Industrial Commission to review its administrative rules and after spending a year doing so, all but three of the rules were “disapproved” by the 2013 legislature. The process will now start over. The legislature has also made it more difficult for the employee to obtain documents from the employer by legislating that a subpoena for documents shall not issue less than 30 days prior to the hearing date. A process that is supposed to be “as summary and simple as reasonably may be” is now full of traps for unsophisticated employees (and their attorney, if they have one).
In 2004 Thomas Frank, a journalist and historian, wrote a book entitled “What’s the Matter With Kansas?” It detailed the rise of political conservatives who obtained power by using hot button social issues, then passed legislation that worked against the economic interests of the vast majority of the citizens of Kansas. North Carolina has become the new Kansas. Conservative Republican legislators took control in 2010 and a Republican Governor, Pat McCrory, joined them in 2012. What has happened in the field of workers’ compensation with this new majority?
On August 23, 2013 Governor McCrory signed into law new legislation (HB 74) which removed Industrial Commission judges (Deputy Commissioners) from the State Personnel Act, effective July 1, 2015. These judges hear the initial claims of injured workers and in 2015 they will no longer be protected from being hired and fired “at will.” It is quite apparent that political interests will be looking over their shoulders as they make decisions about compensation and medical treatment for injured employees. Most of the public seems to be unaware of this significant alteration of the judicial system as it relates to workers’ compensation claims.
The 2013 legislature made it easier for workers’ compensation insurance companies to cancel policies, and for general contractors to escape liability when they failed to get a certificate of insurance from a sub-contractor. Several appellate cases had previously held that if a green-card receipt from a registered notification of cancellation could not be produced by the insurance company, the policy would still be in effect. If there is no insurance coverage for a seriously injured employee, who picks up the bill? Medicaid, Medicare and Social Security (in short, the U.S. taxpayer) gets stuck. North Carolina, unlike most other states, has no uninsured employers’ fund. It’s just tough luck for those folks who legitimately get injured on the job but who have an employer who didn’t get required insurance. An investigative report in 2011 indicated there are as many as 30,000 uninsured employers in this state, yet nothing has been done legislatively or administratively to address this problem.
Since 1929 the overriding principle of the Workers’ Compensation Act in North Carolina has been to provide injured workers with limited benefits, but speedy medical care and a prompt resolution of the claim. However, the system in North Carolina is becoming much more complex, time consuming and expensive, and the tinkering with the system seems never–ending by the conservative majority, which clearly seems to favor big business and insurance interests over the injured worker or the taxpayers who pick up bills that should be covered by insurance. Part II of this blog will discuss other legislative changes made since 2010. Stay tuned.