NATIONAL WORKERS' COMPENSATION ACT OF 1975 THURSDAY, FEBRUARY 5, 1976 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON MANPOWER, COMPENSATION, AND HEALTH AND SAFETY, Washington, D.C. The subcommittee met, pursuant to recess, at 10:40 a.m. in room 2261, Rayburn House Office Building, Hon. Dominick V. Daniels (chairman of the subcommittee) presiding. Members present: Representatives Daniels, Dent, Gaydos, Beard and Sarasin. Staff present: Paul Dwyer, counsel; Charles Sheerin, minority labor counsel; and Denniese Medlin, clerk. Mr. DANIELS. The Subcomittee on Manpower, Compensation, and Health and Safety will come to order. I am pleased to welcome as our first witness this morning Mr. Andrew Biemiller, director of the Department of Legislation of the AFL-CIO. I would like to take this opportunity to explain that I must depart to go before the Rules Committee in an endeavor to obtain a rule on a very important piece of legislation that deals with jobs, which this country so sorely needs. I am pleased to turn the gavel over to my distinguished colleague from Pennsylvania, Mr. Gaydos. Mr. BIEMILLER. We are sorry you cannot be with us, Mr. Chairman, but we agree that rule we need and need bad, and that is a good bill you are trying to get out. Mr. DANIELS. I am going to assure, you Andy, that I will read your statement carefully over the weekend and be fully informed as if I were here attending the hearing. Mr. GAYDOS [presiding]. I want to thank the Chairman. Mr. Biemiller, you may proceed in any way you deem proper and any exhibits you have will automatically become part of the record without objection. STATEMENT OF ANDREW J. BIEMILLER, DIRECTOR, DEPARTMENT OF LEGISLATION, AFL-CIO; ACCOMPANIED BY JAMES O'BRIEN, ASSISTANT DIRECTOR OF AFL-CIO, DEPARTMENT OF SOCIAL SECURITY; LAURANCE GOLD, SPECIAL COUNSEL, AFL-CIO; AND HOWARD MCGUIGAN, REPRESENTATIVE OF AFL-CIO Mr. BIEMILLER. Thank you. LEGISLATIVE Mr. Chairman, the AFL-CIO is pleased to submit to this subcommittee its views in support of H.R. 9431, legislation which would establish minimum benefit standards, or entitlements, all State workers' compensation programs would be required to meet. This legislation. was introduced in this session of Congress by the chairman of this subcommittee, Congressman Daniels, and the chairman of the full committee, Congressman Perkins. The AFL-CIO fully agrees with the bill's declaration of policy that "the full protection of American workers who suffer job-related injuries, diseases, or death requires an adequate, prompt and equitable system of workers' compensation." Workers' compensation is a subject vital to the economic welfare of every working man and woman in the Nation. Unfortunately, it is a subject that has been ignored by Congress far too long. The result of this lack of Federal leadership has led to the development of a haphazard, inadequate and inequitable system of social insurance to compensate the victims of work injury and disease. Dissatisfaction with this system was emphasized before the Congress at the time the Occupational Safety and Health Act of 1970 was being considered. As a consequence of these criticisms, Congress established in section 27 of that legislation a commission to study, evaluate and recommend changes in the Nation's system of worker's compensation. Pursuant to that mandate, the commission, composed of 18 members representing every major interest group concerned with workers' compensation issues, after a 2-year study, concluded, without a dissenting view: "The inescapable conclusion is that the State workmen's compensation laws in general are inadequate and inequitable." The Commission found, during its investigation, that coverage, weekly benefit amounts, medical benefits and rehabilitation benefits were inadequate. In many instances, these same features of workers' compensation programs were found to be inequitable. The Commission was critical of the failure of State administration of workers' compensation, and the lack of interest in the program by State legislators. The Commission was appalled at the existing low level of wage replacement benefits provided by State programs, and the imposition of arbitrary and unrealistic limits on wage replacement benefits and medical care. The Commission was also critical of the failure of State programs to cover all occupational injuries and diseases, and the refusal of many States to permit injured workers to select their own doctor for treatment. The Commission's report contained 84 recommendations for improving existing workers' compensation programs. The AFL-CIO Executive Council, in a resolution adopted August 29, 1972, noted the similarity between the Commission's recommendations and organized labor's longstanding concern for modernizing this vital program of social insurance. The council urged Congress to make enactment of minimum Federal workers' compensation standards a matter of high priority. The AFL-CIO Convention, in October 1975, endorsed this view and adopted an official policy resolution in support of H.R. 9431. A copy of this policy resolution is attached to our testimony. The Commission submitted its report in July 1972. It urged that the States be given until July 1975 to comply with 19 recommendations it classified as essential. It went on to recommend that if the States failed to comply with the essential recommendations by July 1975, Congress should act to guarantee compliance. As of July 1, 1975, not a single State had enacted legislation to comply with all the 19 essential recommendations of the Commission: Fourty-seven States limit the benefits payable to survivors in death cases. Thirty-five States have a maximum weekly benefit below the level recommended as adequate by the Commission. Seven States still limit medical care. Twenty States fail to provide compulsory coverage for all wage and salary workers. Thirteen States exclude workers from the program if they work for small firms. Forty States deny coverage to farm workers. Twenty States fail to provide coverage for public employees. Fifty States deny coverage to domestic workers and casual workers. The failure of the States to modernize this basic and essential system of social insurance makes enactment of Federal legislation. establishing minimum Federal standards for workers' compensation an urgent necessity. H.R. 9431 recognizes the need to provide assurance "that workers' compensation programs within the several States meet minimum standards of adequacy, promptness, and fairness." It is the purpose of this legislation to establish federally guaranteed workers' compensation benefits in the States and to establish administrative requirements for State workers' compensation agencies. We respectifully suggest that the committee revise the provisions in section 2 and section 7 of the bill that would establish administrative requirements for State workers' compensation agencies. At this time, organized labor is convinced that administration of workers' compensation can be significantly improved by setting goals or objectives that are recognized as necessary by all interested parties, and that are to be achieved by each State in its own way. The one exception we would make to this revision continuing the wide latitude of the States relates to lump sum settlements-section 7(a)(6). The AFL-CIO would urge the committee to retain the restriction on lump sum settlements as a minimum standard in section 4 of the bill. After discussing section 4, which is the heart of the bill, I shall return to, and amplify our position on, section 7. We urge the Congress through the exercise of its power to regulate commerce and to provide for the general welfare to establish as minimum standards the provisions of section 4, which provides that the victims of work injury and disease who are compensated through a workers' compensation system shall be entitled to 14 basic benefits. These entitlements relate to medical care, rehabilitation, weekly benefit amounts, choice of physician, time limits, and other features of an adequate workers' compensation program. 75-510-76-5 These basic benefits were included as minimum standards in H.R. 8771 and S. 2008-legislation introduced in the House and Senate in 1974. The AFL-CIO supported these standards when it testified on this legislation in 1974, and we favor their enactment now whether they are termed entitlements or minimum standards. However, there is one feature of section 4 of H.R. 9431 we do not support. Section 4 provides that compensability shall be determined under State law. This is unsatisfactory and inequitable. Injuries, diseases, and death, which arise out of and in the course of employment, should be uniformly compensable throughout the country. Presently, heart disease is compensable in one State and noncompensable in another; asbestosis is compensable in some States and not in others; loss of hearing is treated in a similar disparate fashion by the States. It is to correct these inequities between the State programs that the AFL-CIO urges the amendment of this section to include as compensable all inquiries, diseases, and deaths arising out of and in the course of employment. Section 4 (c) prohibits limits on medical care, rehabilitation services, or other services needed to restore the worker to gainful employment. This provision is narrow in that it only applies to cases of total disability. The language in this section should be revised to make certain these services are available in all injury cases-total or partial. Section 4(i) provides for the payment of attorney fees in addition to the award in successfully litigated cases. This section should be amended to provide for the payment of fees to individuals representing claimants other than attorneys. Some States license or certify specially trained and qualified individuals, who are not attorneys, to represent injured workers before boards and commissions. These individuals should be entitled to payment of a fee if this is the arrangement used to obtain their services. We also urge the committee to revise section 9 which purports to be concerned with employment-related diseases, but does little more than provide for yet another study. H.R. 9431 fails to provide authority to the Secretary of Labor to promulgate additional standards without legislative action. It does not require the adjudication of occupational disease claims according to criteria established by the Secretary of Health, Education, and Welfare, and the question of occupational disease standards is left open for study. This provision should be amended and strengthened by authorizing the Secretary of promulgate occupational disease standards based upon the study and recommendations of the Secretary of Health, Education, and Welfare. A major difference between H.R. 9431 and H.R. 8771, the bill we supported in the last Congress, is the enforcement provisions of the two bills. The use of the Longshore Act to furnish protection in noncomplying States has been abandoned. Instead court procedures similar to those recommended by the National Commission are proposed. It is our view that the sponsors of H.R. 9431 were wise in patterning the bill on the Commission's suggestions. While it appears necessary to use the courts to enforce the basic standards stated in section 4, we believe that the judiciary should be injected into the system as little as possible. One step in this direction |