Business and labor shared a rare Kumbaya moment over workers’ compensation reform this week, with both sides of the debate agreeing that the experience should be used as a template for how to bring two sides together on a polarizing subject.
When House Speaker Mark Ferrandino, D-Denver, last year asked Rep. Angela Williams, D-Denver — the chair of the House Business, Labor, Economic and Workforce Development Committee — to carry a workers’ compensation reform bill, unions and business owners began to dig their respective trenches.
In previous years, efforts to address comprehensive reforms to the state’s workers’ compensation system have either failed or been heavily watered down after divisive and heated conversations between business and labor.
But Williams, along with Sens. Lois Tochtrop, D-Thornton, and Jessie Ulibarri, D-Commerce City, called numerous stakeholder meetings that lasted 10 months in an effort to reach some semblance of agreement.
The key issue this year has been physician choice. House Bill 1383 would increase from two to four the minimum number of doctors that employers must offer to workers who have been injured on the job. The legislation is careful to maintain the current prohibition against switching doctors more than one time upon the initial claim.
Sponsors also deliberately expanded exemptions for rural employers. Current law stipulates that if there are fewer than four physicians willing to treat injured workers 30 miles from the employer’s place of business, insurers may only assign one physician to the injured worker.
Rep. Angela Williams, D-Denver
The legislation would add a second tier to the exemption by stipulating that if there are more than three and fewer than nine physicians willing to treat injured workers then the insurer may assign only two physicians to the injured worker.
“Employers in small communities will not have to assign a level of doctor choice that they cannot achieve because of a lack of available doctors in their area,” explained Ulibarri.
But it took quite some time to get there, with HB 1383 only being introduced on April 16.
The measure went through much iteration, including efforts to eliminate a provision in current law allowing employers to cut injury settlements by 50 percent for hurt workers who fail to follow safety rules. Business interests shut that down as a nonstarter.
Business also shut down a proposal that would have addressed the severance of injured workers who leave the job. Neither side of the debate could figure out a way to adequately address that in state law.
So, after months of negotiations, sponsors and stakeholders settled on the physician choice aspect.
“[Labor] raised initial concerns that the system is not treating workers fairly, especially those most seriously injured, and at the same time, business and insurance interests were concerned about making any changes that would drive higher costs or delay return to work of injured workers,” Ulibarri explained Wednesday when the measure passed Senate State, Veterans and Military Affairs by a unanimous vote.
On Friday, HB 1383 passed the Senate on an initial voice vote.
The bill had a more rocky time in the House, where it passed the chamber by a party-line vote of 37-27. But by the time it made it over to the Senate, lawmakers had a better understanding of the compromise, with support from the Colorado AFL-CIO on the labor side, as well as business interests such as the Colorado Association of Commerce and Industry and the Colorado Competitive Council.
“The bill before you started much more broadly, it is much more narrow now,” explained Ulibarri. “And I think it strikes an important balance in making legitimate improvements for injured workers in the system and also ensuring that cost containment provisions of law are upheld to make sure that costs would not rise.
“HB 1383 is a compromise that has been heavily negotiated,” he added. “We set out to work with stakeholders to develop policy that protected workers and employers. We believe we have achieved that balance.”
Business interests agreed, sharing laughs with union leaders at the State Affairs meeting on Wednesday before the bill was sent to the Senate floor.
“I can’t emphasize enough how exhaustive of a process we went through,” explained Loren Furman, senior vice president of state and federal relations for the Colorado Association of Commerce and Industry.
“What you have in front of you is a proposal that has gone through many, many iterations and one that does not increase costs for employers, which was a nonstarter for us,” she added.
Patrick Boyle, a lobbyist for the Colorado Competitive Council, which represents business investors and chambers of commerce, said the bill brings modest reforms business leaders can live with.
“We think the existing system is a good one, but just because it’s a good one doesn’t mean that it’s always good for every injured worker,” testified Boyle.
“Providing a little more choice creates a sense of fairness in the system, and that’s what 1383 is intended to do,” he added. “At the same time, it will maintain the cost controls that have made our system an exemplary one.”
But he made sure to add that the bill “addresses a relatively small number of cases in which injured workers are dissatisfied with the choice of physicians offered under Colorado’s workers’ compensation laws.”
Phil Hayes, legislative director for the Colorado AFL-CIO, which spearheaded the effort, said union interests were careful to advance a moderate proposal.
“A lot of attention [was spent] on cost to make sure that we didn’t blow the system up structurally, but that we had an ability to say at the end that we gave workers more choice in the system,” said Hayes.
He pointed out that studies have shown that in cases of disputed claims, 63 percent of the time a second medical opinion resulted in disagreeing with the initial analysis done by the doctors chosen by the employer.
“That led us to a discussion, how do we keep the costs low… and how do we increase choice?” said Hayes.
Also strongly supporting the bill was the Workers Compensation Education Association. Lobbyist Scott Meiklejohn said the bill allows for additional choice so that workers can feel comfortable.
“This allows the injured workers to have a selection between a group of different doctors,” explained Meiklejohn. “Maybe someone who is a friend at work has been to one of the doctors and they felt comfortable with them, or maybe they’ve been to a doctor before. This way they have more faith and trust in that doctor, and I think that would lead to a better medical outcome.”
Even Pinnacol Assurance — the state-chartered workers’ compensation insurer that writes the majority of policies in Colorado — remained neutral on the bill, pointing out that it would have a negligible impact on insurers and businesses.
“Pinnacol worked closely with a broad coalition of business community partners to ensure HB 1383 was a balanced proposal that would maintain quality medical care and access for injured workers,” said Lori Fox, vice president of communications and public affairs for Pinnacol. “Because we believe the bill will not drive medical costs and can be implemented without a significant amount of additional work, we took a neutral position.
“While Pinnacol did not seek any changes to the workers’ comp system, we are pleased that the outcome has met the proponents’ goals without harming Colorado’s successful system,” Fox added.
Whimper of opposition
The only opposition to the bill at the hearing on Wednesday came from the Workers’ Compensation Coalition, a 300-member business group.
John Berry, who represented the organization and is a past president, joked as church bells rang in the background and he took to the desk to offer his testimony, “For whom the bell tolls.”
“The bill is frankly a solution looking for a problem,” he said.
Berry pointed out that of the 100,000 workers’ compensation cases in 2012, just 318 individuals felt the need to change doctors.
“[Workers under] the present system would have the ability to choose between two physicians to begin with… and if they’re unhappy with that choice, they have another 90 days to make a choice to go to a third physician…” said Berry. “We don’t think there’s a problem here…”
Negotiations highlighted as a model
Despite what side of the issue stakeholders fell on, most agreed that the negotiations should be held as a model for future policy discussions.
“Discussions between labor and business over the last 10 months provided a template for a way to resolve potential conflicts between business and labor,” opined Boyle. “It’s been a terrific process, and it’s taught us that the relationships between business and labor… most of the time we share the community’s interests.”
Hayes agreed, calling the process a “real dialogue,” including “people listening to each other back and forth.”
He became a bit emotional as he thanked sponsors and stakeholders for their efforts, which drew laughs from the committee as they pointed out that it would be the last time he would be presenting a bill in front of Sen. Ted Harvey, R-Highlands Ranch, a member of the committee who is term-limited this year. Harvey, a conservative, has often been at odds with labor.
But Harvey offered his support for the union spearheaded bill, joking, “I just want to say that I am about to cry that this is the last time I’ll get to vote with Phil Hayes and [AFL-CIO Executive Director] Mike Cerbo.
“But I do want to say that it’s been a pleasure… and I’ll vote for your bill,” Harvey added.
Williams said she is pleased to see her bill moving through the Senate, but she is a bit frustrated that she couldn’t convince House Republicans to support the measure.
“On the Republican side… they do not believe that there’s anything wrong with the current workman’s comp system,” said Williams. “Sen. Harvey was able to see that what we proposed… really did nothing to effect in a detrimental way the current work comp system. All it did to me is enhance what we have now for the benefit of injured workers.”
After 10 months of negotiations, Williams is pleased that she can finally see the light at the end of the tunnel.
“I work very hard to strike a balance between business and labor because I believe that business needs labor and labor needs business,” said Williams. “So, to be able to have a balanced and open conversation and come to an agreement, I think it is a new way of doing business at the state Capitol.”