Last week, the Kentucky House passed House Bill (HB 2), legislation that would hurt Kentucky’s workers, their families and their communities. The bill would severely restrict compensation for seriously injured workers, forcing them to rely on their own savings and on publicly-funded programs to pay for the costs of their injury.
Medical bills and lost time from a work-related injury can be an enormous burden on workers and their families. That is why America’s workers’ compensation system was created more than a century ago. The basic principle is that employers assume responsibility for providing insurance that pays out certain benefits (e.g. medical, rehabilitation, lost time) to workers injured on the job without regard to fault. In return, employers are protected from personal injury or other liability for workplace injuries and illnesses.
Over 50,000 workers were injured on the job in Kentucky in 2016, and 26,000 of those injuries required restricted duty, job transfer or days away from work. Kentucky continues to have a workplace fatality and injury rate higher than the national average.
Yet with this bill, Kentuckians will be at great risk of falling into poverty and relying on safety net programs as a result of a work-related injury. For many, the bill will cap medical benefits related to an injury to 15 years. Provisions that allow for extensions of that cap put the burden on workers to overcome several obstacles on a strict timeline – a set-up that will lead many workers to lose benefits permanently. Benefits for older injured workers will be cut off even more drastically at age 67 or after two years (the latter for those working past age 67).
The bill would also shrink the window in which workers can file “re-opening claims” for when the debilitating consequences of an injury compound years after the original injury. And it would limit doctors’ discretion to decide the best way to treat each patient by introducing treatment guidelines and pharmaceutical formularies.
An additional problem with HB 2 concerns how it treats Black Lung cases. Between 1996 and 2012, rules were in place that made it hard for sick miners to get benefits. That practice was found unconstitutional on the grounds it treated miners differently than workers with other occupational diseases. HB 2 re-establishes the practice by applying it to all occupational diseases. Especially at a time when researchers have confirmed advanced black lung disease is reaching the highest levels ever seen in coal miners from Kentucky, West Virginia and Virginia, the legislature should be looking at ways to better support these workers – not making it harder for them to get medical treatment and workers’ compensation for this devastating disease.
Supporters of the bill claim it would make Kentucky businesses more competitive. This bill is not about competitiveness, but about shifting the costs of a work-related injury from insurance companies (who are doing very well) and business to injured workers and the general public. Workers’ compensation costs for businesses in Kentucky have been declining for two decades. In fact, businesses in Kentucky already pay 18 percent less than the national median for workers’ compensation premiums. Kentucky premiums are solidly in the bottom half of the state premium rankings.
Even as premium costs have gone down for employers and insurance companies’ profits have grown, there has been no increase in Kentucky’s workers’ compensation benefits for injured workers since 2000. HB 2 would slightly increase benefits for a minority of workers, but not by nearly enough or for enough people to offset other damaging components of the bill.
The Kentucky legislature is engaged in a race to the bottom in its workers’ compensation laws, which will result in unfair, weak or nonexistent benefits for seriously injured workers. Without adequate workers’ compensation, the costs of a work-related injury are an enormous burden on workers and their families. The economic security of Kentucky workers, including miners, is at risk with the fate of this bill in the Senate.
Deborah Berkowitz is a Senior Fellow with the National Employment Law Project and former senior official with the Occupational Safety and Health Administration. She can be reached at dberkowitz@nelp.org.
