As an attorney who has spent a career serving injured workers in Washington, I must object to The Herald’s recent editorial in support of SSB 5566, a bill that would allow so-called “compromise and release” in workers’ compensation claims.
Our workers’ comp program began after employers asked workers to give up their right to sue in the civil justice system for injuries that happen on the job. In exchange, workers were assured they’d get the care and benefits they need. That agreement — which is 100 years old this year — is known as Washington’s version of “the Great Compromise.”
Despite its occasional flaws, our current system delivers on this promise. In fact, the industry publication Risk and Insurance magazine rated Washington’s one of the four best systems in the nation, for employees and employers. Compromise and release destroys that balance, giving far too much leveraging power to employers, at the expense of injured workers.
What is compromise and release? Employers could negotiate (compromise) a reduced lump sum settlement all at once; in exchange, worker’s would lose (release) their right to seek benefits and care should unforeseen complications appear years later.
Of course, employers love this idea, saying it will save them $1.2 billion. But injured workers will be getting less of the benefits they need, and when those benefits run out, they’ll have nowhere to turn but public assistance. So, the “savings” is really a cost shift, from employers, to workers, and eventually to taxpayers.
These settlements are sure to be inadequate for the injured worker — they’re designed that way. Unlike many states, Washington caps benefits to injured workers. Other states also only allow settlements after medical conditions stabilize. This bill would allow the negotiations to begin just a few months after the injury. That’s a very dangerous time for the injured worker. It is just long enough that they are struggling financially, but not long enough for them to fully know the extent of their injuries.
Take for example an injured worker I have represented, Don Roller. Don suffered a serious work injury to his lumbar spine in 1992. Don had no way of anticipating how much medical treatment he would eventually need for his lower back condition. Don went on to require six lumbar surgeries and the implantation of an intrathecal pain pump to administer small amounts of morphine directly to his lumbar spine.
Despite these many procedures and his chronic pain, Don returned to work for a number of years. When he was eventually unable to return to work, his workers’ compensation claim covered the medical treatment and some of his lost wages. This is how our system is supposed to work.
However, if the workers’ comp system had “compromise and release” at the time Don was injured, he could have been driven to accept a small settlement amount. If that initial settlement was inadequate — and it probably would have been in Don’s case — he would have no recourse. He would have signed away his rights, and then you and I as taxpayers would be the last line of defense.
Proponents say that won’t happen — that settlements will be fair and not coerced to undercut workers. As an attorney with considerable experience on these matters, I am not so optimistic. The bill offers no protections to injured workers when they are pressured to accept unfair offers. And, there are no sanctions or penalties for bad faith or abusive negotiating tactics, despite the overwhelming power and expertise the employer has in the situation compared to the worker.
I look at this proposal and I’m very worried for my clients. I know how threatening a severe workplace injury can be to their physical health, financial stability, and family. But as worried as I am for them, I’m more worried for the majority of injured workers who manage their claim without the help of an attorney.
Our Legislature is also considering a package of workers’ comp legislation that is worth over $700 million in savings and efficiencies. That legislation can restore the system’s reserves that were lost through the economic collapse three years ago. That’s how to strengthen workers’ comp. Compromise and release, however, would harm the workers our system is designed to protect.
Bill Hochberg is an attorney based in Edmonds.
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