Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, August 15, 1993 TAG: 9308130448
SECTION: BUSINESS PAGE: F-1 EDITION: METRO
SOURCE: MAG POFF STAFF WRITER
DATELINE: LENGTH: Long
Under recently expanded court cases, he probably would have recovered the money if he had typed his way into carpal tunnel syndrome, an ailment made worse by repetitive motion and caused by swollen ligaments that press on wrist nerves.
Instead, Gardner hurt his arm by clicking the computer's mouse; 10 hours a day, for weeks on end.
A research associate in industrial and systems engineering for Virginia Tech at Blacksburg, Gardner filed a claim for a meager $150, the uninsured portion of his medical costs. The claim was rejected by the university's workers' compensation insurance carrier because he couldn't prove beyond doubt that the repetitive actions that injured his arm were work-related.
"Virginia law is just a little behind the time," Gardner said.
But that could change with January's General Assembly.
The Governor's Advisory Commission on Workers' Compensation, which completed its work June 23, has recommended several changes in the law, including making it easier for workers to prove the relationship between jobs and injuries like Gardner's.
And the Virginia Chamber of Commerce has spearheaded formation of a business coalition that will meet next month to reach agreement on a united stand on the various commission recommendations.
For delegates and state senators, the next session of the General Assembly "is going to be pretty hairy," said Del. Malfourd "Bo" Trumbo, R-Fincastle. "Hard lines are being drawn" on some of the workers' compensation issues, he said, based on what he's heard so far.
Trumbo said he worries that "the ability to compromise is not going to be there" when the 1994 General Assembly convenes.
"The business community throughout Virginia is open to change, if change is needed," said Daniel G. "Bud" Oakey, who as vice president of the Roanoke Regional Chamber of Commerce has led its legislative push on the issue.
The Roanoke regional chamber is a member of the statewide business coalition.
"We are concerned with any effort to change a law that has for the most part fairly treated both the employee and employer," Oakey said, admitting his bias on the side of industry.
Some of the commission recommendations are good, he said, but others would place an expensive burden on operators of small businesses. Those, Oakey said, stem from "a few very emotional cases" with unusual factors.
Rather than change the law, Oakey said, lawmakers need to look at the way the law is administered.
Workers' compensation claims are reviewed and paid for by the employer's insurance carrier under supervision of the Virginia Workers' Compensation Commission.
Larry Tarr, deputy commissioner, said he had no figures for an average award made to injured workers.
But he said workers' compensation is divided into two parts.
The first is indemnity for lost wages. Tarr said injured workers may receive two-thirds of their lastest salary - free of state and federal taxes. The current maximum is $451 a month or $23,452 a year. Therefore, Tarr said, people who earn up to about $35,000 a year receive two-thirds of their salary tax-free.
In the 12 months ended February 1989, the lastest period for which figures are available, Virginia employers spent $13.8 million on wage indemnity.
Tarr said employers, through their insurance carriers, also must pay all medical costs related to the accident "for as long as necessary." The injured worker faces no deductions or co-payments.
That cost Virginia employers $13.4 million in the same period ended February 1989.
Tarr said the wage and medical awards can last a lifetime, so claims can range from small to very large.
The cost of a company's insurance to cover such risks are based on its claim experience. Most employers, therefore, have a financial interest in workplace safety issues.
But Oakey charged that the governor's commission did not adequately present the interest of the state's businesses. The commission, he said, was slanted with only four business people on the panel of 14. The four he counts as pro-business are Douglas S. Divers Jr., Charles F. Midkiff, Irene M. Moszer and Howard V. Smith Sr.
The commission, he said, was "pro-labor; it's not an unbiased committee."
The commission held four public hearings in the fall of 1992 at Abingdon, Alexandria, Norfolk and Richmond.
At these hearings, he said, speakers with business viewpoints were "booed and heckled." They were also given less time to speak than were those with a labor viewpoint, he contended.
The commission's chairwoman, state Sen. Yvonne Miller of Norfolk, declined to comment on the allegations. She said she would let the four volumes of transcribed recordings of the hearings speak for themselves.
The commission expects to meet once more to look at the final report, Miller said, but no date has been set. Changes could be made at that time, she said.
She also said it would be "impolite" to comment on the report itself until Gov. Douglas Wilder has a chance to review the material.
The commission's vice chairman, Del. Bernard Cohen of Alexandria, could not be reached. Arlan Bolstad, a staff attorney for the General Assembly, also said that the final report could change before it is submitted to the governor.
Regardless of the circumstances, said Keith Cheatham of the Virginia Chamber of Commerce, the final commission report was "kinder" to business and industry than they had anticipated.
Trumbo said he expects major controversy over the commission's recommendation regarding the ordinary diseases of life. Many business leaders have told him that such a change would open the door to unsubstantiated claims.
And Trumbo expects legislation to be introduced regarding a section on which the commission failed to reach an agreement. Therefore, it did not make a recommendation.
That section of the current law provides for an employer-approved panel of physicians for treating a claimant and evaluating his injury. Proponents of change want to grant the employee the right to choose his or her own physician.
Del. Clifton Woodrum said it would be up to the governor to introduce legislation recommended by a study commission that he - not the General Assembly - created.
Del. Victor Thomas said he gets many requests from people who want assistance in getting answers on their claims.
A recent one, he said, came from a truck driver who attributed his back problems to an inadequate sleeping area inside his truck.
The truck driver's claim was denied, according to Thomas. But he presumably would have a better chance to collect if the commission's proposals are enacted.
Cheatham of the Virginia chamber praised the addition of enforcement provisions to the anti-fraud legislation.
But he called the occupational disease provision "troubling" and "confusing."
Still, he said, the purpose of the coalition is to study all of the proposals and reach a consensus for lobbying next year's General Assembly.
He said the state chamber has put together a coalition of more than 100 companies from all over Virginia that have an interest in workers' compensation.
One of them, he said, is Appalachian Power Co., whose staff member, Mark Lawrence, is working on the project through the government affairs committee of Roanoke's regional chamber.
The attempt to reach a unified position also will cover other issues, such as the choice of physicians, that probably will be raised by the General Assembly, Cheatham said.
The pitch to the legislature is likely to be based on economic development. Business people will argue that Virginia's relatively strict workers' compensation laws help to attract industry to the state.
The Virginia Chamber of Commerce hired The Wadley-Donovan Group of Morristown, N.J., to make that point during the commission's public hearings.
Its spokesman, Dennis J. Donovan, testified that he helped place four companies, including Time-Life Books, at facilities in Virginia and was working with two other prospects considering Virginia locations.
Enacting even one of the proposed changes, he said, "would markedly diminish Virginia's competitiveness for new and expanding businesses."
Companies opting for other states for new locations or expansions, he said, would cause "loss of hundreds of new job opportunities each year that these workers' compensation changes were in effect."
Donovan said that "the very fact that such anti-business changes are being seriously considered is causing some firms to have second thoughts about Virginia."
He cited a New England company whose workers' compensation expenses account for more than 5 percent of payroll costs. That, he said, is the "pivotal reason" the company intends to move.
Donovan called workers' compensation "one of the most vexing, contentious and costly problems facing American business in the early 1990s." He cited a study by Inc. magazine that called the costs out of control.
He said job-related injuries and sickness cost U.S. employers about $62 billion in 1991, an increase of 300 percent since 1980. If trends continue, Donovan said, costs would triple again by 2000.
The Wadley-Donovan Group presented a study of Virginia and 11 other states with which it competes for industry.
It found the ratio of workers' compensation costs to payroll costs varied from a high of 6.97 percent in California to 1.55 percent in North Carolina. Virginia was second lowest at 1.74 percent.
Maryland's rates are 63 percent higher than Virginia's, Donovan said, because of a liberal interpretation of injury and because of allowing employees to select a physician.
Factors pushing rates out of control, he said, include burgeoning medical costs, fraud, abuse "and regulations making it far too easy to make a claim and far too hard to refute it."
"It is the latter which is of greatest concern to business regarding changes the commission is considering," he said.
Another organization girding for the coming fight is the Virginia Business Group, an association of 10 Virginia companies that includes three Roanoke companies: Roanoke Electric Steel Corp., Appalachian Power Co. and Coastal Coal Sales. It is represented on the steering committee of the coalition.
H. Benson "Ben" Dendy III, a Richmond businessman and a former secretary of the commonwealth, is an organizer of that group. He wrote an article about the workers' compensation situation for the June issue of Agenda, a publication of the Roanoke Regional Chamber of Commerce.
He said in a telephone interview that many bills to change workers' compensation are likely to be introduced in the General Assembly - as is true most years.
He said opponents of change in the laws will make two arguments.
One is the immediate cost, according to Dendy. That ranges from the $62 billion nationwide to the payroll burden on small businesses with only a few employees.
The second argument, he said, is that raising the costs in Virginia would give a competitive edge to states like the Carolinas and Georgia in attracting new industry.
Dendy said people who make claims for repetitive injuries, such as carpal tunnel syndrome, are held to a higher burden of proof than those who receive sudden injuries at work.
If the accident was not a single instance, he said, claimants must meet a six-prong test to prove that the injury is related to work.
This is what the commission would change, he said, shifting the burden of proof to an employer, especially to very small companies.
He said that would force companies to pay for "diseases of life" that are not related specifically to the workplace.
In many states, Dendy said, workers are allowed to make claims for mental stress as a function of the workplace.
Yet there are people like Gene Gardner, the Virginia Tech researcher whose arm was injured during intensive work on video-editing machines.
Unable to meet the burden of proving his claim, Gardner paid off his medical bills for physical therapy and kept on working.
But he at least has a sympathetic employer.
Virginia Tech gave Gardner a black box with knobs to control the machines. He said the arm movements are completely different from the mouse.
\ ADVISORY COMMISSION ON WORKERS' COMPENSATION\ \ Here are members of the task force appointed to review Virginia's workers'\ compensation laws:\ \ State Sen. Yvonne B. Miller, chairwoman, Norfolk.\ \ Del. Bernard S. Cohen, plaintiffs' attorney, vice chairman, Alexandria.\ \ Carol A. Amato for the Secretary of Economic Development, Richmond.\ \ Stephen M. Ayres, physician, Richmond.\ \ Douglas S. Divers Jr. for Workers Compensation insurers, Richmond.\ \ Harold T. Green, physician, Midlothian.\ \ William R. Hartz, mayor of Waverly, for local government.\ \ Elizabeth A. Hayes, Garment Workers Union for labor, Bristol.\ \ Gary W. Kendall, AFL-CIO lawyer, at-large member, Charlottesville.\ \ Daniel G. LeBlanc, AFL-CIO president for labor, Richmond.\ \ Don W. LeMond for the Secretary of Administration, Richmond.\ \ Charles F. Midkiff, businessman, at-large member, Richmond.\ \ Irene M. Moszer, businesswoman for private employers, Richmond.\ \ Andrew C. Muse, teacher, at-large member, Williamsburg.\ \ Thomas R. Scott Jr., lawyer, at-large member, Grundy.\ \ Howard V. Smith Sr., businessman for private employers, Richmond.
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