I was speaking with a state workers' compensation regulator recently, when our conversation turned to a number of the issues facing the workers' comp industry these days. We spoke about ProPublica, Opt Out and legal challenges to exclusive remedy that the industry is facing. We talked about the regulatory challenges the states are confronting. And we discussed the recent conjectures related to potential Federal intervention into the industry.

With that point the conversation turned to the last time the Feds made a serious attempt to influence workers' compensation, the 1972 Federal Commission on Workmen's Compensation appointed by Richard Nixon. The regulator made, what I feel, is an astute and accurate observation. After reviewing the many points brought out and recommended by the Commission, they came to the conclusion that many of the recommendations simply were not relevant to the economy and system of today. In our discussion we were in agreement that the federal government is not in a position to understand or correctly address the deficiencies of our industry, but that clearly nationwide there are changes that need to be made.

It was at that point they said (paraphrasing because I was not taking notes), “We clearly need to have a national conversation to help establish effective standards. But who will lead it? Who will lead the national conversation on improving workers' comp?”

It is a tremendous question. And there are several possible answers.

The Feds are not the entity to address the industry's shortcomings. The regulator (whose identity, if you have not noticed, is not being revealed here) suggested that within the states there is a tremendous backbench of talent that could collectively create positive and effective standards for the industry. They just need someone to pick up that banner and lead the effort.

There are a number of groups directly tied to insurance commissioners and regulators that could spearhead a national “conversation”, so to speak. The International Association of Industrial Accident Boards and Commissions (IAIABC) is one. The Southern Association of Workers' Compensation Administrators (SAWCA), a rapidly expanding and dynamic group, is another. There is the NAIC, the National Association of Insurance Commissioners or, to a lesser degree, NCOIL, the National Conference of Insurance Legislators (I maintain a stubborn suspicion that many legislators are too far removed from the processes their legislation creates – legislation that in many cases contributes to our ills). There is also NASI, WCRI, NCCI and a host of other organizations that could have impact on the process.

A successful conversation will not be one that is exclusive to regulators. No, a truly dynamic discussion will need to include key industry people, representing a cross section of all the primary stakeholders in workers' comp; employers, workers, medical professionals, judges and the carriers/TPA's that facilitate the process.

Regardless, nothing will happen without a defined leader taking the reigns and giving voice to the concept. It will be a person, group or even company with the vision to recognize that better options and processes are possible; that our industry can and must address its shortcomings and work to eliminate the seemingly inevitable doom of disability that encompasses so many of those we serve.

I am not the only one to present this question. David Langham, Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims, has written at least two articles over the last couple years that touch on this topic. In “A 21st Century National Compensation Commission?”, he discusses a presentation by Professor John Burton, covering the potential for another “Federal Commission” on workers' compensation. Burton, who chaired the original 1972 commission, does not believe another one would be effective in any manner that the Federal government might establish it. I had the pleasure of debating Dr. Burton last year in a series of articles for the IAIABC Journal about the future of workers' comp. In those articles he outlines his reasons in explicit detail regarding his position on a new commission.

Langham also wrote in January “A Time for Leadership – Now”. In that piece he is really asking the same question I post today; “Who will lead this industry, the safety net of American employers and employees alike?”

If You Schedule It, They Will Come

I spoke with Langham Friday (he is a fellow board member of the newly formed Kids Chance of Florida, Inc.) and I mentioned this question. He has clearly given it thought, and had a suggestion on how to accomplish this goal.

He postulated that a large industry player, perhaps a carrier, located in a central and convenient area of the country could take the initial lead on the effort. They would have to make a large conference or meeting room available, and arrange to host a two or three-day gathering. To this conversation would be invited 2 representatives from stakeholder groups; IAIABC, SAWCA, NAWCJ, III or AIA, SIIA, NAIC, AMA, AFL/CIO and so forth. A moderator, who would be someone with industry experience but be from a “disinterested” area would be assigned to run the meeting. 

It would be a closed gathering with open and frank discussions, and as Langham indicated, they may not ultimately score, but “they may end up moving the ball”.

I would also hope that innovative thought leaders from the burgeoning “recovery” front would be included. Some of the problems that plague our industry require bold new thinking to resolve the issues we face. Any of the experienced minds I've referred to can identify the problems; new thoughts and ideas need to be allowed to flourish if those problems are to be effectively addressed.

But it has to start with a conversation, national in scope and driven from within our industry. Our choices are clear; lead with strength and clarity or follow a lesser attuned path of victimization. Which choice will we make?

Who will lead the national conversation on workers' compensation?

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