I SPEAK HERE TODAY FROM THE SOMEWHAT LOFTY VANTAGE POINT OF PUBLIC POLICY, NOT FROM THAT OF A TECHNICAL DEFENSE LITIGATOR OR CLAIM ADJUSTER IN THE AREA OF WORKERS' COMPENSATION.

I RECALL FROM LAW SCHOOL THE QUOTE FROM U.S SUPREME JUSTICE OLIVER WENDELL HOLMES, IN A CASE OVERTURNING CHILD LABOR LAWS, "THE FOURTEENTH AMENDMENT DOES NOT ENSHRINE MR. HERBERT SPENCER'S SOCIAL STATICS." WHO WAS THIS INDIVIDUAL THAT HE WOULD RECEIVE SCORN FROM SUCH A RENOWNED FIGURE? HE WAS A 19TH CENTURY SOCIAL PHILOSOPHER, WHO WOULD NOT BE CONSIDERED POLITICALLY CORRECT TODAY.

FOR EXAMPLE, HE BELIEVED ORGANIZED CHARITY WAS NOT ULTIMATELY BENEFICIAL TO SOCIETY IN MOST CASES BECAUSE IT DEPRIVED THE POOR IN THE LONG RUN OF THEIR DESIRE TO WORK. BUT IN A PIECE ENTITLED "THE SINS OF LEGISLATORS" HE REALLY HIT THE NAIL ON THE HEAD. HE ATTACKED LEGISLATORS' IGNORANCE NOT ONLY OF THE ECONOMIC LAWS WHICH RULE THE MARKETPLACE BUT ALSO THE SOCIAL DARWINIAN LAWS OF EVOLUTION WHICH REQUIRE THAT IN THE COURSE OF PROGRESS "SUFFERING MUST BE ENDURED."

THE WORK COMP BILLS OF WHICH I SPEAK ARE THE OUTGROWTH OF THE KIND OF IGNORANCE AND OF MISGUIDED CHARITY SPENCER SPOKE OF: MAKE SOMEONE ELSE - THE BUSINESS LARGE OR SMALL, THROUGH SELF - INSURANCE OR INSURANCE - PICK UP THE TAB IN THE INTERESTS OF GREATER FAIRNESS, COST BE DAMNED.

THIS SESSION OF THE LEGISLATURE SAW A NUMBER OF BILLS WHICH WOULD HAVE DEEPLY AND ADVERSELY ALTERED THE WORK COMP SYSTEM. IT MUST BE REMEMBERED WORK COMP STARTED AS A TRADE OFF LONG AGO: A WORKER GAVE UP THE RIGHT TO SUE, BUT GAINED A GREATER CERTAINTY OF RECOVERY, BECAUSE THE EMPLOYER NO LONGER HAD THE DEFENSE OF COMPARATIVE FAULT.

BUT ONCE THE SYSTEM IS VIEWED AS A SOCIAL ENTITLEMENT, IF IT DOESN'T PAY ENOUGH, ITS IMPAIRED; FIX IT.

1. THE MOST PROMINENT PROPOSALS WAS FOR EMPLOYEE CHOICE OF PHYSICIAN (SF 424) OVERTURNING THE LONG-STANDING RIGHT OF THE EMPLOYER TO CHOOSE THE PHYSICIAN. THE DIFFICULTIES WITH THIS IDEA IS MANIFEST:

   1. EMPLOYER CHOICE OF PHYSICIAN HAS A LONG TRADITION IN IOWA.

   2. WITH THE KIND OF MEDICAL INFLATION THAT HAS BECOME COMMON IN RECENT YEARS, EMPLOYER CHOICE IS THE ONLY WAY TO CONTROL BOTH MEDICAL TREATMENT COSTS AND IMPAIRMENT RATINGS.

   3. EMPLOYEE CHOICE, ON THE OTHER HAND, HURTS WORKERS, BECAUSE GREATER TIME - CONSUMING LITIGATION DELAYS PAYMENT.

      1. UNLIMITED EMPLOYEE CHOICE WOULD CAUSE EMPLOYER AND INSURERS TO CONTEST THE EMPLOYEE'S CHOICE OF PHYSICIAN BY FILING PETITIONS FOR ALTERNATE CARE. THIS WOULD CAUSE RETENTION OF ATTORNEYS BY THE DEFENSE EARLIER THAN AT PRESENT, DELAYING PAYMENTS TO INJURED WORKERS AND DRIVING UP COSTS.

      2. PRESENTLY, INSURERS MAINTAIN PANELS OF PHYSICIANS WILLING TO TAKE TREAT WORKERS' COMPENSATION CASES. THESE PANELS COULD DRY UP IF PHYSICIANS HAVE THE ULTIMATE DECISION WHETHER TO TREAT WORKPLACE INJURIES. FOR EXAMPLE, TREATING INDIVIDUALS INJURED IN THE WORKPLACE MIGHT BECOME UNPROFITABLE.

   4. IT HAS BEEN SHOWN BY THE NATIONAL COUNCIL ON COMPENSATION INSURANCE - THE RATE MAKINF BUREAU FOR COMP INSURANCE - THAT EMPLOYEE CHOICE OF PHYSICIAN WOULD INCREASE INSURANCE RATES - UNDER THE PROPOSED IN QUESTION UP TO 14%. YET IOWA NOW HAS THE SEVENTH LOWEST WORK COMP INSURANCE RATES IN THE NATION.

      NOTWITHSTANDING THESE CONCERNS, THE POLITICAL APPEAL OF EMPLOYEE CHOICE OF PHYSICIAN DOES EXIST - WHY SHOULDN'T A WORKER BE ABLE TO CHOOSE HIS OWN PHYSICIAN? OUR MESSAGE TO WORKERS BASED ON EXPERIENCE: BE CAREFUL WHAT YOU WISH FOR.

      IOWA HAS VERY HIGH BENEFITS. IF EMPLOYEE CHOICE OF PHYSICIAN WERE ENACTED, THERE WOULD BE AN INEVITABLE COUNTER-PUSH TO LOWER BENEFITS. THIS IS BECAUSE EMPLOYEE CHOICE COMBINED WITH IOWA'S HIGH BENEFITS WOULD MAKE THE COST OF WORK COMP INSURANCE PROHIBITIVE. ALTERNATIVELY, FEWER INDIVIDUALS WOULD BE HIRED BY BUSINESS IN THE FIRST PLACE.

      IOWA HAS HAD A TRADITION OF NOT CHANGING THE WORK COMP LAWS IN EVEN THE MOST MINOR RESPECT WITHOUT ARGUMENT AMONG ALL PARTIES - BUSINESS, LABOR, PLAINTIFF AND DEFENSE ATTORNEYS, AND OF COURSE, INSURERS. IF THIS PROPOSAL WERE CRAMMED DOWN THE THROATS OF BUSINESS, THERE COULD BE EXPECTED TO BE LATER EFFORTS TO IN TURN UNILATERALLY DOWN BENEFITS. THE WORKERS' COMPENSATION SYSTEM WOULD THEN BECOME HIGHLY POLITICALIZED.

2. OTHER PROPOSALS:

   1. (HF 743) AUTOMATIC APPLICABILITY OF BODY AS A WHOLE FOR WHAT ARE NOW SCHEDULED INJURIES, E.G. X NUMBER OF WEEKS OF PERMANENT PARTIAL TREATMENT FOR LOSS OF, OR LOSS OF USE OF, AN ARM OR LEG. THIS INCREASES THE NUMBER OF PERMANENCY AWARDS AND BECAUSE THIS TYPE OF AWARD IS USUALLY ARRIVED AT AFTER EXTENSIVE LITIGATION BEFORE THE COMMISSIONER, THIS PROPOSAL WOULD NOT ONLY DRIVE UP INDEMNITY COSTS BUT ALSO LENGTHEN DELAY IN PAYMENT. AGAIN, TO THE INJURED WORKER IS THIS ULTIMATELY WORTH IT?

   2. (HF 797) REPEAL OF APPORTIONMENT. HISTORICALLY, EACH EMPLOYER PAID ONLY FOR THE INJURY AT HIS OWN PLANT OR PLACE OF BUSINESS. (UNLIKE PERSONAL INJURY LAW, SUBSEQUENT EMPLOYERS DID NOT PAY THE COMPOUNDING EFFECT OF SUBSEQUENT INJURIES). THIS IS HOW THE COMMON LAW OPERATED : WHERE FIRST INJURY RESULTED IN A 25% BODY AS A WHOLE IMPAIRMENT, WORKER WHO WAS REINJURED AND ENDED UP WITH A 75% IMPAIRMENT DUE TO INJURY AT ANOTHER EMPLOYER - EVEN THOUGH THAT INJURY PRODUCES ONLY A 25% IMPAIRMENT IN A PREVIOUSLY UNINJURED INDIVIDUAL - WOULD RECEIVE PAYMENT ONLY ON THE BASIS OF A 25% IMPAIRMENT. AN IOWA SUPREME COURT DECISION CHANGED THIS TO MAKE THE SECOND EMPLOYER PAY 75%, WHICH LED TO A STATUTORY CHANGE IN 2001 RESTORING THE EARLIER PRACTICE. TO REPEAL THE STATUTORY CHANGE WOULD ADD TO THE BENEFIT AND SYSTEM COSTS AN AMOUNT ESTIMATED TO PRODUCE A 3% RATE IMPACT.

   3. (HF 676) ALLOWED REVIEW REOPENING ON THE BASIS OF SOME FACTOR AFFECTING PERMANENCY RATING AT THE TIME OF SETTLEMENT, EVEN IF KNOWN ABOUT THEN BY THE PARTIES IF NOT SUFFICIENTLY REFLECTED IN THE SETTLEMENT. THIS PROPOSAL WOULD RESULT IN FEWER SETTLEMENTS. THE ONLY TYPE THAT WOULD BE ENTERED INTO WOULD BE ABSOLUTELY FINAL "SPECIAL CASE" SETTLEMENTS. THE WHOLE ADJUDICATED PROCESS WOULD BE DELAYED.

   4. (HF 677) IN THE CASE OF EMPLOYEES OF TEMPORARY EMPLOYMENT AGENCIES, THEY ARE DEEMED TO BE EMPLOYEES OF THE EMPLOYMENT AGENCY AND NOT OF THE ACTUAL BUSINESS WHERE THEY WORK. GOOD IN CLARIFYING WHO HAS TO PAY THE COMP BENEFITS BUT LEAVES THE ONE BUSINESS WHICH IS THE ACTUAL WORKPLACE SUBJECT TO THE SUIT FOR TORT DAMAGE INASMUCH AS THAT BUSINESS DOES NOT HAVE THE BENEFIT OF THE EXCLUSIVE REMEDY DOCTRINE. (THE COMP SYSTEM IS DEEMED STATUTORY TO BE THE EXCLUSIVE REMEDY AGAINST THE INJURED WORKER'S EMPLOYER.)

IN SUM, WELL MEANING CHANGES TO A SYSTEM WHICH IS INTERPRETED IN FAVOR OF THE INJURED WORKER CAN RESULT IN NOT ONLY INCREASED COSTS FOR EMPLOYEES AND THEIR INSURERS BUT ALSO NOT BE IN THE LONG TERM INTEREST OF INJURED WORKERS. THE LEGISLATURE WOULD BE WISE TO AVOID THEM.

COOLER HEADS DID PREVAIL WHEN ONLY THE ADVISORY COMMITTEE BILL EXTENDING THE BALANCE OF BILLING BAN ON MEDICAL PROVIDERS TO EMPLOYER AND INSURERS PASSED.