Week 4 Legislative Update

 Four weeks into the 2015 legislative session, all remains quiet on the workplace safety front. But as predicted, workers’ compensation heated up considerably, with contentious hearings in both the Senate Commerce & Labor Committee and House Labor Committee over bills primarily championed by employer and claimant interests, respectively.

 Senate Action

 On Monday, while most of the region continued muttering in shared grief over the ill-fated slant pass that ended Super Bowl XLIX, the Senate Commerce & Labor Committee took up SB 5576 and SB 5508 in public hearing. The former would require an employee to report an injury within 60 days in writing to an employer, the failure to do so precluding a subsequent workers’ compensation claim. The latter, a WSIA priority, would reverse the 2010 Tobin decision shielding third party recoveries characterized as “pain and suffering” from reimbursement. Employer representatives supported both bills, while claimants’ bar representatives opposed them. Both bills are scheduled to be voted out of committee next Wednesday.

 On Wednesday, the Senate Commerce & Labor Committee began am ambitious agenda including six different workers’ comp bills, and ended up hearing three of them before running out of time:

  • SB 5510, WSIA’s top priority, which would bring accuracy and consistency to the wage benefit calculation by adopting a flat 66.67 percent benefit rate applied to gross income determined by an annual average. WSIA and other employer associations came out in strong support of the bill, and WSIA was represented by Kris Tefft and Legislative Committee member Paul Chasco of ESD 113. WSIA associate members Washington Retail Association and Associated General Contractors also spoke in favor. The bill was opposed by union and claimants’ bar reps, and engendered a one-the-one-hand/one-the-other-hand analysis from the Department of Labor & Industries. Of interest, prime sponsor John Braun, R-Chehalis, asked L&I’s Vickie Kennedy to suggest some concepts to improve the bill, and Kennedy pledged further research and discussion on the issue. The bill is scheduled to be voted out of committee next Wednesday.
  • SB 5420, which would allow private insurance, along with the state fund and self-insurance. This “3-way” bill is sponsored by the committee chair, Michael Baumgartner, R-Spokane. It brought mild philosophical support from some business interests, and intense opposition from the unions and claimants’ bar. L&I Director Joel Sacks testified in opposition to the bill, decrying the costs he believes a 3-way system would impose on smaller employers through more expensive insurance. The bill is scheduled to be voted out of committee next Wednesday.
  • SB 5331, which would authorize small private group self-insurance. Like SB 5420, this proposal to open up the state fund further was supported by some business groups, and opposed by claimants’ attorneys, citing anecdotal concerns with the expansion of “profit motive” in the Washington system. The bill is scheduled to be voted out of committee next Wednesday.

House Action

 On Thursday, the House Labor Committee countered the Senate activity with a marathon hearing on seven different workers’ compensation bills:

  • HB 1496, Labor & Industries’ request bill to expand the Preferred Worker Program and Vocational Rehabilitation Pilot, in service of the agency’s Return to Work initiatives. In an unfortunately rare show of détente, this pre-negotiated bill was supported by everyone, employer and claimant sides alike.
  • HB 1602, 1603, and 1604, bills advanced by the firefighters’ union to add EMTs and fire investigators to the firefighter occupational disease presumption, and mandate a L&I-led study of hazardous exposure reporting among firefighters. WSIA, joined by the Association of Washington Cities, opposed all three, citing the lack of scientific evidence to support broadening coverage of the presumption, as well as the escalating costs that are already evident in insuring firefighters.
  • HB 1611 and 1612, Washington State Labor Council priority bills, which would greatly expand the definition of “benefit” for purposes of litigation over withheld or delayed benefits, and allow an award of costs and attorney’s fees on appeal of treatment orders at the Board (1611), and would impose higher penalty sanctions on self-insured employers for delayed or denied payments on appeal (1612). WSIA opposed both in testimony, while the AFL-CIO and the claimants’ bar supported.   
  • HB 1613, which would reverse the Slaugh appellate court decision by authorizing discretionary post-PPD medical treatment. Supported by labor and claimants’ counsel, this bill garnered a mixed reaction from WSIA and other employer representatives. Insofar as it promotes solid claim closure, it may be a good policy; but further sideboards around the department’s exercise of discretion would be desirable. L&I was tasked with developing some further language that might improve the bill before it is considered for further action. 
Looking Ahead to Next Week

 In addition to the movement of several of the aforementioned bills out of committee next week, the Senate has so far indicated it will take public hearing on:

  • SB 5509, held over from Wednesday’s hearing, would tighten up the coverage standard and statute of limitation for occupational disease claims. This bill is scheduled for hearing on Monday, and movement out of committee on Wednesday.
  • SB 5451, the Senate companion to L&I’s aforementioned Return to Work bill. It’s up for hearing next Wednesday.
  • SB 5507, a new bill authorizing an award to an employer who successfully appeals a penalty order at the Board, is up for hearing on Wednesday.

As of today, the Senate has not scheduled hearings on what has been, since 2011, the primary battleground for workers’ compensation policy – structured settlements. Although we expect the Senate committee may take up SB 5513, which eliminates the age restriction on structured settlements, prior to the February 20th cutoff for bills to emerge from their committees for further consideration, this marks an interesting shift in both emphasis and strategy by our friends in the Senate to perhaps pivot to newer issues confronting the workers’ compensation system.