Workers’ Comp Hub Newsletter: Summer 2019

Healthcare is a Human Right

Edited by Jim Ellenberger

This month we consider how proposals for Medicare for All and public insurance option would impact injured and ill workers, examining the potential for integration of workers’ comp medical into a national health insurance system. We also bring you news on farmworkers winning workers’ comp and other crucial labor protections in New York, a constitutional challenge to workers’ comp law in Florida, and a victory for California workers in the fight against employee misclassification.

– Jim Ellenberger

Medicare for All and workers’ comp: What would universal, publicly financed health care mean for injured and ill workers?

Healthcare is a Human Right
Healthcare is a Human Right
For the first time in decades, there’s a real opening to fight for and win a universal, publicly financed, national healthcare system that guarantees health care as a right for everyone. In the face of fierce resistance from health care industries and political power-holders in both parties, a wave of popular support and a strong and growing coalition of labor and community organizations have forced Medicare for All onto the national agenda. Unions in the coalition represent 9.5 million people, a majority of the country’s union members, and community organizations in the coalition represent millions more.

By guaranteeing access to medical care and ensuring that no one has to pay more for health care they can afford, Medicare for All would provide health and financial security to everyone, including all workers. For the tens of millions of workers struggling with rising health insurance costs, limited coverage of treatments and doctors, and cost barriers to care, this would be a huge deal.

But what might Medicare for All mean for workers who now seek medical care or income supports through workers’ compensation? How would Medicare for All differ from proposals for a public insurance option? And what are the chances of anything actually passing?

How Medicare for All and state bills address workers’ comp integration

Medicare for All bills have been introduced in both the U.S. House and Senate, and legislation for universal, publicly financed health care has also been introduced in a number of states, advancing furthest in New York, where the Campaign for New York Health, a labor-community coalition, came just one Senate vote shy of passing the New York Health Act last year.

These proposals are committed to providing a single standard of care to everyone, regardless of age, employment, nationality, or wealth. Medicare for All and most state bills would eliminate deductibles, copays, and other cost barriers to care, and protect people from unaffordable medical bills. They would also reduce the power of insurance, hospital, and drug companies to make profit-driven life-or-death decisions about people’s health care.

Both federal Medicare for All bills would guarantee injured and ill workers seamless access to the medical care they need at a doctor of their choice, whether work-related or not. Coverage would be uninterrupted by changes in employment, and would not be subject to time limits on treatment or limited coverage of doctors, treatments, and medicines. Crucially for injured workers, the bills would for the first time cover long-term care services and comprehensive rehabilitative treatment. Never again would injured workers be denied the care they need because an insurance company decides their medical condition is not sufficiently work-related or their state legislature has imposed an arbitrary cap on medical benefits.

Workers’ compensation would be simple for medical providers too. Rather than billing multiple payers, they would simply provide workers with the care they need, check a box to indicate whether or not the workers’ condition is work-related, and receive payment from the Medicare for All system for all the care they deliver. The Medicare for All system would then bill workers’ comp insurers for whichever treatments and medicines are work-related.

Most state-level bills for universal, publicly financed health care take a cautious approach to integration. The New York Health Act, the Healthy California Act (SB 562) and Vermont’s Act 48, for example, would all convene a special commission to study whether and how to align workers’ compensation medical care with the new unified state system and issue a proposal to lawmakers. Both the New York and California bills call for commissions to develop proposals on how workers’ comp medical payments might be integrated into the states’ new health insurance programs and whether or not to use “experience ratings” to continue to adjust employers’ premiums based on their safety records, a practice that sounds good in theory but that research has found incentivizes employers to suppress workers from reporting injuries.

All of these federal and state bills would leave the income-support side of workers’ compensation intact. Workers’ comp insurers would continue to pay replacement wages to workers with disabilities under the continued oversight of existing state and federal workers’ compensation boards. 

Meanwhile, a separate set of Congressional proposals for public insurance options—including Medicare for America, the Medicare-X Choice Act, and Choose Medicare—fail to address workers’ compensation at all. These bills would maintain a mixed private-and-public insurance system, increasing access to a public insurance option for a subset of the population but leaving the vast majority of people with coverage gaps between jobs, coverage gaps for services and providers not covered by their plans, escalating insurance and out-of-pocket costs, and continued struggles to get medical care through workers’ compensation.

What lies ahead

No single-payer or public-option bills will pass Congress or state legislatures before the 2020 election, and it is far too early to say which of these bills might pass after that. A grand ideological and political fight is playing out over the proper role of government and corporations in the economy. On one side, the enormously powerful health insurance industry and its allies are pumping millions of dollars into public ad campaigns, contributions to elected officials’ campaign funds, and hard-nosed lobbying to protect their markets and profits. On the other are strong public demands for a more just economy, growing coalitions fighting for health care justice, and unprecedented support in Congress and state legislatures. In between, there’s plenty of disagreement.

The arrival of Medicare for All on the national stage presents a crucial opportunity for injured worker activists and advocates to build solidarity between struggles for workers’ rights and health care. The labor movement’s full backing will be needed to win guaranteed health care for all, and also to ensure that injured and ill workers’ needs are addressed in national and state health care policies.

Further reading:
  • Labor Campaign for Single Payer’s 2017 brief on workers’ comp and single-payer healthcare
  • Vermont’s Agency of Administration’s 2013 paper on workers’ comp integration or alignment and the response from the Vermont Workers’ Center and NESRI
  • American Public Health Association’s 2009 statement on workers’ comp integration
  • AFL-CIO’s 1986 statement

A new report from NESRI shows how the health insurance industry and right-wing think tanks have distorted democratic discourse around healthcare policy, crafting a biased framing of government vs. private insurance that has been adopted by mainstream media and public opinion polls.

National COSH’s annual “Dirty Dozen” report calls out employers who endanger their workers and communities. Released on Workers’ Memorial Week, this roundup of worst offenders honors workers who have lost their lives and those who have been injured or made ill on the job.

This Data & Society explainer documents four trends in workplace monitoring and surveillance, considering how each impacts workers and workplace dynamics.

In New York, workplace fatalities have increased sharply while changes to workers’ comp law have eroded protections for injured workers, according to a new report from the New School Center for New York City Affairs. The state’s woefully inadequate wage replacement threatens to push tens of thousands of low-wage workers a year into poverty when they must lose work time due to workplace injuries. For more details, see the summary and full report here.

Day laborers perform valuable and often dangerous work, but most injuries they suffer on the job go unreported and most are excluded from workers’ comp eligibility requirements. A mere 5% of injured day laborers surveyed said workers’ comp paid medical costs for their workplace injuries, according to a research brief from the UCLA Labor Occupational Safety and Health Program (UCLA-LOSH) and the National Day Laborer Organizing Network (NDLON)

New resources provide guidance on protecting workers from silica exposure, in this Occupational Health Watch from the California Department of Public Health.

News Roundup

On June 19, the Farmworkers Fair Labor Practices Act passed in the New York State Senate, bringing long overdue labor protections, including workers’ comp and the right to collective bargaining, to the state’s 80,000 farmworkers. This is a major victory for worker-activists, who have fought for years to end the Jim Crow-era exclusion of farmworkers from labor legislation. 

Congress gave final approval to a bill that would give lifetime medical and income compensation to September 11th first responders who became ill due to toxic exposure.

Tesla employees and doctors at Access Omnicare reveal how the car company pressured the local clinic into misdiagnosing and denying care to injured workers in order to dodge workers’ comp costs. The clinic’s head doctor, Dr. Basil Besh, complied with demands from Tesla’s workers’ compensation manager in order to secure a contract as the company’s on-site medical provider. Their fraudulent scheme has left injured factory workers saddled with medical debt.

California’s janitorial workers won two recent victories. As part of multiple labor investigations against Tesla, California fined the car manufacturer and its former janitorial subcontractor each $84,000 for failing to carry workers’ comp insurance. In May, a federal appeals court ruled that workers must be classified as employees at cleaning franchiser Jan-Pro, which ‘sells’ individuals low-wage work by marketing it as an opportunity to run an independent business. The ruling retroactively applied the California Supreme Court’s important 2018 Dynamex decision, which made it more difficult to classify workers as independent contractors. The state legislature is considering a bill that would write this stricter employment test into law, which worker advocates hope will apply to other gig economy companies.

In Wyoming, home to the country’s highest workplace injury rates, undocumented immigrant workers struggle to access workers’ comp. It is the only state to explicitly prevent undocumented immigrants from being hired as employees, hence excluding them from most labor protections. Debbie Berkowitz, worker health and safety program director with the National Employment Law Project, says the state’s system “encourages unscrupulous employers to hire undocumented workers and then use their immigration status as a shield to escape full responsibility for on the job injuries.”

A public school employee in Florida has posed a constitutional challenge to part of the state’s workers’ comp law, arguing that the authority given to “expert medical advisers” to override the medical advice of treating doctors violates due process. After being rejected by the 1st District Court of Appeals, Teresita De Jesus Abreu and her lawyer have asked the state Supreme Court to take up the case. As testimony from injured workers and doctors alike reveals, insurance companies regularly contradict the medical advice of treating doctors, calling on the opinion of an “expert medical advisor” who has never seen the patient in person to legally justify such wrongful denials.
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