Wednesday, January 18, 2012

Bill to propose: Either abolish Miss. Workers' Compensation Commission or fix it

(This is a follow-up to my earlier posting on a recent report that was highly critical of the Mississippi Workers' Compensation Commission, an agency charged with handling cases of workers injured on the job. This blog has followed this story more closely than any other publication in the state. It's an issue that reaches far beyond Mississippi, however, as leading regional and national politicians like presidential hopeful Newt Gingrich have expressed disdain for the very concept of workers' compensation.)

A bill will be filed in the Mississippi Legislature either to abolish the state Workers’ Compensation Commission or change it to require better legal training of commissioners and that it do a better job explaining its handling of worker injury cases.

“The issue here is transparency,” Joint Committee on Performance Evaluation and Expenditure Review (PEER) Director Max Arinder said about the commission. “They don’t explain their actions.”

In a long-awaited report released this month, PEER, a bipartisan state watchdog agency, said the commission 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 commission’s review of administrative law judge rulings in compensation cases, including its penchant to modify or reverse them, adds an estimated 57 days in getting cases resolved, the report said. An earlier study ordered by Jackson, Miss., attorney Roger Doolittle showed a clear pro-employer tilt in commission decisions.

Lack of transparency about commission decisions is one of its problems, the PEER report says. “We don’t know what their motives are,” Arinder said. “A good appellate record would say why they are going against administrative law judge rulings.”

The report “pretty much confirmed what my and other claimant lawyers’ perception was,” Doolittle said last week. “These (commission) actions, by and large, were to the detriment of injured workers in Mississippi.”

John Jones, another Jackson attorney who handles workers’ compensation cases, said the report shows “we’ve lost touch with the history and purpose of the (workers’ compensation) act.” The law says close cases should actually tilt toward the employee rather than the employer because the injured worker, in seeking compensation, is surrendering the right to future legal action.

Commission Chairman Liles Williams, recently re-appointed to a six-year term by then-Gov. Haley Barbour, and fellow commissioners John Junkin and Debra Gibbs issued a sharp rebuke of PEER’s findings, claiming that PEER “blatantly contradicts itself” and makes “a gross mis-characterization” of the commission’s role and in 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 to the report 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.”

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

PEER offered two options for remedying the situation: (1) eliminate the commission altogether and create an office administered by an executive director appointed by the governor and allow administrative law judge rulings to be appealed directly to the Mississippi Court of Appeals; (2) revise the commission to "reflect the need for members to have extensive legal training"—at present, only one of the three commissioners must be a lawyer--and to require the commission to "review the appeals brought before it entirely on the record."

Arinder said PEER committee members, which include seven state senators and seven representatives, will sponsor legislation regarding these options. “To what extent it will gain traction remains to be seen,” Arinder said.

Commission senior attorney Scott Clark, speaking on behalf of Chairman Williams, said the commission “will not become involved in the legislative process in any way” in connection with the PEER report.

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

“We knew something was just not right with the workers’ compensation commission,” said former state Rep. and PEER committee member Dirk Dedeaux, who initially asked PEER to undertake the review. “You want a process that is consistent, fair. We’ve got the administrative judges, the appellate courts, and this hole in the middle.”

Mississippi, the last state in the nation to adopt a workers’ compensation law, is perennially at the bottom among states in what it pays injured workers. Most states award 100 percent compensation for weekly wages. Mississippi workers receive two-thirds of their weekly wages. Jones estimated approximately 13,000 workers are injured on the job each year, and many more may go unreported.

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