A Jan. 9 Wall Street Journal article warned: “Workers’ Comp Insurance Now Harder to Get.” Coupled with the ongoing coal operators’ attempt to gut coal miners’ Black Lung benefits, this highlights the failure of this crucial social insurance system.

A little less than 100 years ago, workers were forced to trade in their right to sue their employers for negligence in return for workers’ compensation laws which pay all medical bills stemming from the injury or illness with a wage replacement that should reflect their normal wage.

This promise does take place in most European countries, but not in the United States. The trade-off here has become a fiasco.

World Trade Center aftermath
The WSJ article refers to the workers’ comp claims that might be filed stemming from the World Trade Center disaster.
They report that workers’ comp insurance companies might insert into their already high rates the cost of future terrorist attacks. Rather than making sure that all workers and their families receive their legal and financial (including death benefit) rights, the carriers are looking for ways to avoid their responsibilities.

Workers’ compensation laws were established precisely to take care of these kinds of disasters without the need for further legal actions. Some comp carriers are looking to exclude terrorism from workers’ compensation coverage. Some already do. You can imagine employers and their carriers trying to pin regular work-related accidents and illness on a “terrorist” attack.

Black Lung benefits
The struggle by coal miners for their Black Lung benefits stems from the successful efforts, over 30 years ago, of the United Mine Workers of America in attaining federal benefits. Benefits are based on the “presumption” that after 15 years of working in the coal mines, the coal miner is presumed to have Black Lung disease and deserving of benefits. State workers’ comp for Black Lung benefits complied with this “presumption.”

But, the mere thought of a “presumption” has always been a bone in the throat of coal operators, other scofflaw employers and their politicians. They feared that other workers who face similar work hazards, i.e., asbestos insulations workers; workers who perform repetitive motions activities and contract carpel tunnel injuries would be granted this right.

The governor of Kentucky is attempting to reverse his anti-miner actions of 1996 when he authored anti-Black Lung that struck down important aspects of this presumption. Right-wing legislators, meaning pro-coal operators and politicians, oppose any improvements. They say it straight out: “Is this something that is going to compensate injured workers for injuries on the job or is it going to be an entitlement program?”

Miners and their unions are applying the kind of pressure to force the governor to change his opinion. Now, they will have to do the same with the state legislature.

“Out of the box” thinking
There is a lot of talk these days about legislative thinking that is “Out-of-the-Box.” It usually means something different or new reforms. Too often the out-of-the-box is a backward, pro-employer measure. This out-of-the-box recommendation is to make “Presumption” the central feature of a federal and state system of workers’ comp. That was the original idea around workers’ compensation.

A simple schedule can be created, based on the Black Lung experience. The schedule would list the occupational disease and the length of experience needed to qualify for workers’ comp. Most respiratory/pulmonary diseases are “latent,” meaning it takes a few years from the initial exposure for the disease to become active. The 15-year period is a good place to start.

Of course, if the exposure is excessive, the time limit might be shorter. One thing is for sure, radical pro-worker changes in workers’ compensation laws, federal and state, are needed before the other side, the employers get their way.

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