Debunking 'Opt-Out' Myths (Part 3)

This is the third of eight parts. The first article in the series is here. The second article in the series is here. Workers’ compensation is a mysterious realm. Just pick a state. Even those of us who regularly read workers’ compensation statutes, regulations and official government websites have great difficulty triangulating the truth about basic rights and responsibilities for injured workers. The little communication provided to injured workers tends to be oversimplified, leaving them no choice but to hire a lawyer to navigate the system. In fact, armies of trial lawyers, insurance and claims personnel and government employees are needed for basic functions of workers’ compensation systems. These armies then find much to argue over, which drives an endless pursuit of “reforms.” Even the industry’s biggest proponents and thought leaders complain of dysfunction. OSHA has also now joined the chorus claiming that workers’ compensation systems “add inequality to injury” and shift too much cost to injured workers and other government programs. Against this backdrop, we’ve seen the Texas “nonsubscriber option” (often referred to as "opt-out") grow to cover considerably more than one million workers and successfully handle more than 50,000 injury claims a year. A more highly regulated “Oklahoma option” launched in 2014 and has withstood two challenges at the Oklahoma Supreme Court. Statistically credible data demonstrates that better outcomes for employees can be achieved through more deliberate, easy-to-understand communication that supports requirements for employee accountability. Such simple injury management principles have resulted in billions of dollars in employer savings and economic development. Now, both Tennessee and South Carolina are considering option legislation, with several other states wondering if they should do the same. Having worked on legislation and regulatory systems related to option programs for more than 25 years, I can understand the initial confusion and distrust by option opponents. Moving from a hyper-regulated, almost exclusively state-regulated system to a more free-market alternative that relies on a combination of state and federal laws takes people out of their comfort zone. They have legitimate questions that deserve good answers. But too much of the discussion to date has been devoid of any spirit of inquiry. Workers’ compensation carrier associations issue fallacious descriptions of the purpose and mechanics of option programs. Allegations by plaintiff attorneys in lawsuits are quoted by workers’ comp industry media as irrefutable facts. Instead of research, option opponents attempt to promote class warfare while falsely disparaging reputable employers. In the midst of this chaos, only one thing is sure: We are in a period of transition, and the facts will emerge, one way or the other. In-depth information about options to workers’ compensation is more accessible every day. For those who are willing to have a reasoned public policy dialogue and information exchange, a path of progress emerges. For those who prefer uninformed hostility over homework, their true intentions will become more obvious, and their voices will be less credible as the days go by.