Wednesday, January 4, 2012

Bi-partisan watchdog agency takes Mississippi Workers' Compensation Commission to task for failing injured workers

(To the right is labor attorney Roger K. Doolittle in his office in Jackson, Miss.)

The Mississippi Workers’ Compensation Commission is failing workers who’ve been injured on the job as a result of their work, according to a report by a bi-partisan government watchdog agency in the state.

In a long-awaited report released Tuesday (Jan. 3) and revealed here for the first time, the Joint Committee on Performance Evaluation and Expenditure Review (PEER) said the state Workers’ Compensation failed to provide "clear, principled legal grounds for reversal or modification of orders" from administrative law judges, and that it failed to adopt "rules and practices to ensure statutorily compliant and efficient operations."

The report also pointed to the comparatively long time required in Mississippi to resolve worker compensation cases. PEER’s investigation revealed that prior to 2007 the commission approved administrative law judges’ decisions without modification in 70 percent of cases. That dropped to 58 percent after 2007. Commission modification of rulings rose from 8 percent before 2007 to 12 percent after 2007.

“Ultimately, reversals or modifications can impact the amount of time it takes claimants and other parties to resolve their workers’ compensation claims,” the report says.

The commission’s review of administrative law judge rulings adds an estimated 57 days to the process of adjudication, the report says.

January 2007 was the point when Republican Gov. Haley Barbour assumed control of the majority of appointments to the commission.

A 2005 study by the Workers Compensation Research Institute showed that cases in Mississippi take much longer to resolve than cases in other states. “The average interval from petition filing to a judge’s order was almost 20 months,” the study said.

PEER offered two options to remedy the situation. The state could eliminate the commission and replace it with an office whose executive director would be appointed by the governor and a procedure to appoint administrative law judges whose rulings could be appealed to the Mississippi Court of Appeals. It could also revise the role and composition of the commission to "reflect the need for members to have extensive legal training" and to require the commission to "review the appeals brought before it entirely on the record."

If the commission is left in present form, PEER said it needs to provide administrative law judges with "necessary clerical and editing support" and make sure its rules conform with existing statutes.

More than two years ago, the state House Insurance Committee held a hearing on findings in a study ordered by Jackson, Miss., labor attorney Roger Doolittle that showed the three members of the state Workers’ Compensation Commission—Chairman Liles Williams, John Junkin, and Augustus Collins II (since replaced by new commissioner Debra Gibbs)—siding decisively with the employer in most cases before them, particularly in reversals of administrative court decisions.

For example, 77 percent of the reversals of administrative judge rulings sought by Williams were in favor of the employer. For Junkin, 91 percent of the reversals were for the employer’s benefit. For Collins, 75 percent were for the employer.

Such a record “is unprecedented in Mississippi jurisprudence,” Doolittle said about his study in 2010. “You’ve got judges that collectively have the highest experience rate in the history of the (workers compensation) act, and they are being reversed at the rate of about 80 percent.” He referred to reversals of decisions favoring the employee.

“I’ve been doing this for 25 years, and I’ve never seen a commission this conservative,” said Jackson attorney John Jones at the time. “The irony is that by statute and by history (workers’ compensation) is supposed to be tilted toward the worker. The worker is supposed to get the benefit of all doubt.”

Mississippi, the last state in the nation to adopt a workers’ compensation law, is a perennial bottom feeder among states in what it pays injured workers. It is one of the few states that award less than 100 percent of weekly wages to workers injured on the job. Injured Mississippi workers receive two-thirds of their weekly wages. Jones estimated that approximately 13,000 workers are injured on the job each year, and many more may go unreported.

Williams, recently re-appointed to a six-year term by outgoing Gov. Barbour, and fellow commissioners Junkin and Gibbs issued a sharp rebuke of PEER’s findings, claiming, for example, that PEER is off base is assessing the commission as if it were roughly equivalent to an appellate court. They also take PEER to task on its description of several compensation cases cited in the report.

In an unusual move, PEER filed a written response to the commission response and said PEER doesn’t accuse the commission of violating the law but instead “points out … that the adjudicative process could be carried out more efficiently and with greater transparency.” It also notes that “the additional time the commission expends on reviewing and often modifying decisions of the administrative law judges adds little to the ultimate fairness of the process, but does add time.”

PEER’s 14 members include seven state senators and seven state House members.

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