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There is dead certainty that the next administration will get tougher about occupational safety and federal disability protection laws, and may put the workers' compensation system itself under a microscope. Here is what to look for.

The Occupational Safety and Health Administration under President George W. Bush has been under constant attack by organized labor and Democrats over its nonissuance on new guidelines for work exposures. The loudest clash occurred in March 2001, when the president, with the support of a Republican Congress, killed ergonomic standards which OSHA had issued in November of 2000.

The Democrat-controlled Congress this year passed, and the president signed in September, an expansion of the Americans with Disabilities Act. The amended version opens the door for injured workers to sue for modified duty assignments even if only temporary. Expect an Obama administration vigorously to promote these changes, which go into effect on Jan. 1, 2009.

In other ways, Washington might rough up or even try to take apart the workers' comp system. For some time I've been preoccupied with such a scenario, like watching a car wreck in progress. About each year I suck my thumb and imagine new versions, such as what you're reading now.

Let's first look at Medicare. It is not widely appreciated that something like one out of eight new enrollees in Medicare are persons with work disabilities. Many of these ex-workers are workers' comp claimants.

Washington has been enforcing a policy requiring workers' comp carriers to cough up the funds to match the payments that Medicare will incur for medical care for work injuries going forward after enrollment. It reports that it is receiving about $150 million a year from the workers' comp settlements, a figure which seems to be modest given its total annual medical spending on injury treatment is today about $25 billion.

With Medicare funding on code red, someone may ask if the workers' comp system is getting a free ride even with this arrangement in place. I wonder if a powerful committee chairman may decide to pound on the table for more money from insurers.

And we'll have another go at federal overhaul of health insurance. The program envisioned during the first Clinton administration would have folded workers' comp medical benefits into healthcare benefits. To do so would be very complicated and complicate how we manage injuries, but that did not deter reformers then and may not in the next administration.

I personally want healthcare reform (who doesn't?) but do not want workers' comp mixed up in it. An important principle to protect is employer and insurer accountability for the whole claim. Shifting medical care to health insurance will split the claim.

We've got to acknowledge that the workers' comp system is a mystery to almost all outside it. This includes Congressional committees, White House staffs, Washington think tanks, and the press. We've got to explain our system more clearly. If we don't provide more transparency and Congress starts hammering away, I'll come back and say I told you so.

PETER ROUSMANIERE is an expert on the workers' compensation industry.

December 1, 2008

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