Printer Friendly

Door creaks open further.

Last fall's congressional victories by Democrats open the door further for the feds to regulate workers' compensation. Washington will not seek outright control; it is not even directly interested in workers' comp. But their electoral and legislative ambitions will encourage the Democrats to expand work disability safeguards. This could trigger the most sweeping increase in workers' comp protections since a federal commission in the 1970s scared many states into reforms.

Congressional Democrats appear intent on passing an immigration reform bill with a strong guest-worker provision, and on strengthening the terrorism insurance backstop program, initially enacted by Congress in late 2002.

The Senate favors immigration reform to increase the legal supply of foreign workers. The new House leadership appears to endorse this approach, one that the White House has wanted all along. Most of the 7.5 million illegal workers would be allowed to stay, within the confines of a guest-worker program.

This program gives to these workers full workers' comp protections. It will sweep away a clutter of prohibitions and unintended barriers caused by law or court precedent in many states. And it will make it illegal for guest workers to be other than an employee: i.e., independent contractor status will be prohibited. This measure is designed to eliminate gray labor markets. It affords these workers more protections than many legal workers, including Fed Ex drivers.

I expect the protective impulse of the guest-worker program to penetrate labor markets for millions of legal workers. The state of California got it right in 2006 when it conducted a study of "low-wage immigrant" labor, not just illegal labor. Jobs requiring relatively little education continue to grow in numbers, and risk management for working immigrants is responding. Last year, for example, a construction industry executive proposed that supervisors learn how to speak Spanish, rather than expect workers to speak English well enough to take instructions.


On another note, it is not widely understood how expansion of workers' comp benefits sits like a time bomb within the Terrorism Risk Insurance Act of 2002, and its extension in 2005. I inferred from a conversation I had last year with an influential Democratic representative that Congress may begin to pay more attention to holes in coverage for work-related terrorist losses.

The next major terrorist act may involve biological agents. Some covered workers will die, more will be made physically ill and many will suffer mental anguish. Estates of those killed will receive death benefits. The physically ill will have to claim disease benefits, typically a torturous legal process. Those with posttraumatic stress disorder will maybe be precluded from workers' comp awards because their state laws either forbid or discourage "mental" claims.

Sooner or later, a Democratic Congress will conclude that TRIA is good policy only if workers are reasonably assured of having their claims accepted within the workers' comp system. Otherwise, the losses turn into fodder for third-party liability suits. We can see this scenario playing out among the World Trade Center cleanup work force. Congress may write into TRIA a requirement that states expand coverage to meet the real scope of terrorist risk.

PETER ROUSMANIERE, a Vermont-based consultant and writer, is the workers' comp columnist for Risk & Insurance[R]. He can be reached at
COPYRIGHT 2007 Axon Group
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2007 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Title Annotation:WORKERS' COMP
Author:Rousmaniere, Peter
Publication:Risk & Insurance
Date:Jan 1, 2007
Previous Article:Gathering clout: program specialists were lost in the expansive sea of insurance until the TMPAA reeled them in.
Next Article:Dilbertian exclusions.

Related Articles
The Drive for Reduced Costs.
The Coming Crisis.
Jumping Back Into the Pool.
The knowledge gap: many companies face an education gap in managing workers' compensation cases. (Property/Casualty: Loss/Risk Management Notes).
Filled to the brim: while workers' compensation insurance pools have grown rapidly in the past two years, they are still nowhere near the crisis...
Employers win a round: jury awards for injured workers decline but employers had still better be wary.
When the Feds march in ...
Middle ground elusive: big rift underscores divide in comp claims management.

Terms of use | Copyright © 2017 Farlex, Inc. | Feedback | For webmasters