AFL-CIO signs off on package of workers' comp changes proposed by governor's panel

A labor-management group convened by Oregon Governor John Kitzhaber has reached agreement on changes to the workers' compensation system - the first pro-worker reforms of that system in at least 10 years, said the Oregon AFL-CIO.

"These are not reforms that will fix all the problems with the workers' comp system," said Tim Nesbitt, president of the Oregon AFL-CIO, who with Ken Allen, executive director of the American Federation of State, County and Municipal Employees Oregon Council 75, and Bob Shiprack, executive secretary of the Oregon State Building and Construction Trades Council, represented labor on the committee. "We are shifting the pendulum back a couple of notches toward a more fair and adequate system of compensation for injured workers," Nesbitt added.

The package of changes was recommended by all six labor and management members of the governor's group and was ratified by a unanimous vote of the Oregon AFL-CIO Executive Board May 9.

The changes will be drafted as legislation for the next session of the Legislature, but there is no guarantee lawmakers will pass the bills.

The "consensus package" is supported by Governor Kitzhaber, State Senator Gene Derfler, Associated Oregon Industries and labor, so the thinking is that with that kind of support lawmakers will make quick work of the bills.

The most significant changes, according to the state labor federation, include:

Compensability: Eliminating "predisposition" as a basis for denying benefits; and shifting the burden of proof from the worker to the employer in the event of a workplace incident, which means that the employer would have to prove that the workplace incident was not the cause of a worker's disability.

Benefits: Expanding access to benefits after expiration of the five-year aggravation period; increasing the cap on time loss benefits from 100 percent of Oregon's average weekly wage to 133 percent; increasing compensation for injured workers who hold multiple jobs to reflect the time lost from all covered employment; reducing the timeline for accepting or denying a claim from 90 to 60 days, and expanding the circumstances when workers can refuse light-duty assignments.

Adjucation of claims: Restructuring the insurer medical examination (IME) system to require certification of IME doctors by the Workers Compensation Division and to require insurers to give workers a choice of three different doctors when referred to an IME.

Also, as part of the package, employers got two things they wanted, including a five-year time limit on new condition claims (same as aggravation rights), but labor preserved benefits for new condition claims after five years by shifting them to, and expanding the benefits available for, the Workers Compensation Board's "own motion" authority to approve the reopening of a claim.

Employers also will get a modification of the Employer Liability Act (ELA), which now allows workers to seek damage awards for workplace injuries in multi-employer settings where an employer (other than the direct employer) was responsible in whole or part for an injury. This primarily affects construction workers. The change recommended is to require ELA claims to be based on the "contributory negligence" standard, which means claimants have to prove that a defendant employer is more than 50 percent responsible for an injury.

In other news involving workers' compensation, the Oregon AFL-CIO has decided not to collect signatures on two initiative petitions recently certified by the Oregon Supreme Court. The chief petitioners were Nesbitt, State Representative Diane Rosenbaum, a member of the Communications Workers of America, and Billy Washington of Workplace Injured, a coalition of injured workers.

The initiatives would have allowed workers' comp insurance benefits if work was a "material cause" for an injury or illness. As it stands, work must be the "major contributing cause" in order to be eligible for benefits. It also would have prohibited restrictions on medical treatment before final claim acceptance.

Since changes to the workers' compensation system began a decade ago, Oregon employers have saved nearly $5 billion in reduced costs, according to the Oregon Department of Consumer and Business Services. This year employers received another 2.2 percent decline in pure premium rates, thus marking the 10th consecutive year of rate reductions.

Nesbitt said Kitzhaber is preparing to reconvene the 10-person Management-Labor Advisory Committee, which is charged with advising the Legislature on matters concerning workers' compensation.