Changes sought in workers' compensation - East Valley Tribune: Arizona

Changes sought in workers' compensation

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Posted: Saturday, March 8, 2008 12:28 am | Updated: 12:05 am, Sat Oct 8, 2011.

Arizona businesses are pushing state legislators to alter workers' compensation laws in ways they say will save them money.

One measure making its way through the Legislature would allow the Industrial Commission to reduce an injured employee's benefits if he or she were fired for misconduct. Rep. Michele Reagan, R-Scottsdale, said this is designed to prevent what she said are abuses of the system by some workers.

The second contains several provisions which House Majority Whip John McCommish, R-Phoenix, said are simple adjustments in the law. These include some time limits on claims.

But that measure also spells out that insurers can talk directly with an injured worker's doctor, a provision a labor advocate said could result in undue and unfair pressure on physicians by a company's insurer to change their diagnosis.

The proposals are a direct outgrowth of a decision last year by the Legislature to sharply increase the maximum benefits that injured workers can collect.

That figure had been $1,600 a month. It will rise to $2,400 over a two year period, with automatic future increases linked to inflation.

But the increases were not exactly voluntary: Lobbyist Marc Osborn acknowledged that if there were not a deal, the state AFL-CIO would take their case directly to the ballot. And that created the real possibility voters would approve an even more generous hike.

Now businesses want something in return.

HB2829 deals with how benefits are computed.

In general, injured workers are entitled to two-thirds of what they were making, subject to the statutory caps. But if a company can find a job that a partially disabled worker can do at a lower salary, the benefits are adjusted accordingly.

Osborn, who lobbies for the Arizona Chamber of Commerce and Industry, said this creates an interesting situation when a business fires a worker for misconduct.

He said the benefits for the now-unemployed worker are computed on the basis of what the person was earning before being let go, with no regard for the fact there was a job at the company for which the employee was qualified - and would still be working but for the misconduct.

Attorney Brian Clymer, who represents injured workers, said that alters the basic premise of workers' compensation.

He said it was set up as a "no fault" system, where an injured worker is entitled to set compensation, regardless of who is at fault for the accident. In exchange, companies got immunity from being sued for additional damages.

More specifically, Clymer said the things that constitute "misconduct" under the legislation are overly broad, including absence from work without notice to the employer or good cause for failing to give notice.

"If you miss one day, you can be fired," he told members of the House Commerce Committee who were reviewing the measure. Clymer said that easily can happen where a company doctor tells an employee it's OK to go back to work but the worker's own doctor says otherwise and the employee decides to stay home.

Reagan, however, said that ignores the "real life examples of ... how, in my opinion, the employers have been abused."

She said there are situations where workers are fired for drug use and drug dealing and are now getting paid benefits based on their full salary.

"It costs businesses, especially small employers," Reagan said. "It takes one employee in a small business to bring it down."

A key provision of the other measure, HB2828, relates to the question of who can talk with the doctor of an injured worker.

Melissa Taylor of the Arizona Self Insurers Association said the best way for an employer to figure out if a claim is valid is to have all the information.

"Oftentimes it's just a quick phone call to make a clarification about the treatment of an injured worker," she told lawmakers. But there are instances where an employee refuses permission to speak with a doctor.

"Employers have a right to that information," she said.

But Mike Colletto, who lobbies on behalf of union and labor interests, said he sees something a bit more sinister.

He said doctors are interested only in practicing medicine and don't want to be dragged into hearings on a work-related injury at the Industrial Commission. Colletto said he worries about situations where a defense attorney might put the physician in a tough situation, telling the doctor that if he or she doesn't alter the diagnosis and help get the case dismissed then the defense lawyer will force the doctor to come in for days of hearings.

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