Last week, US Labor Secretary Thomas Perez and a team of analysts and economists released the highly anticipated report on workers’ compensation, entitled “Does The Workers’ Compensation System Fulfill its Obligations To Injured Workers?”

I can save you a ton of reading here by providing the direct answer. According to the DOL, it is “no”.

In many ways the report was not as bad as some might have expected. Still, those of us who predicted that the agency would call for further potential action at the Federal level to protect the interests of Social Security Disability Insurance (SSDI) were largely proven correct. The report was very focused on offsets and cost shifting from the workers’ comp system to other disability systems including SSDI.

The report was also heavily focused on the 1972 Federal Commission on Workmen’s Compensation, and spent a great deal of energy reviewing adherence (or lack thereof) to the standards they established over 40 years ago. I find myself agreeing with Mark Walls who last week lamented, “Why are we spending so much time talking about a 40-year-old commission and recommendations for an economy that no longer exists? Can you think of another industry that cites a 40+ year old report as relevant?”

The authors took issue with a host of practices and trends across the industry, including (relatively) recent attempts to define or establish causation. I am a bit troubled by the sensation that, from the reports perspective, almost any injury or illness can and should be construed as employment related, and therefore be the complete responsibility of the employer. While the concern was that a work aggravation or contributing injury can be the “final straw” preventing someone from returning to work, it is not always easy or fair to shift some of those expenses to the employer. They also seemed to denigrate employer directed care, which, done properly with occupational specialists can provide superior results to the tried and not so true family physician.

Finally, as Joe Paduda pointed out in a recent post, the report denizens spent very little, if any time, analyzing what disability actually was, and how so many people are now coming to be “disabled”. There could be much analysis on why certain injuries are today leading to total disability, when years ago that may have not been the case. They seem to just accept that any claim or diagnosis of disability was a foregone conclusion, and worked from that static beginning. While they addressed disability avoidance from a safety and prevention standard, they completely failed to address the disability mindset, and how we can work to remedy that issue. Avoiding disability after the injury is as important as avoiding the injury itself. Failure to do so is equally damaging to the injured worker and their family.

There was some good news, however, both for the industry and me personally. First, I was very surprised and honored to find this blog cited in the report two times, with the authors referring to information within an article I wrote about state restrictions on exceeding standards. Secondly, and by far most importantly, the report recognizes and discusses the Workers’ Compensation Summit, the group Judge David Langham and I established to push a “National Conversation” about issues in workers’ comp. It states that “A gathering of diverse workers’ compensation experts in a self-styled Summit concluded that benefit adequacy, system failures, and delays in medical treatment were the three foremost issues requiring action.” Interestingly, the tone of the report seems to concur on these three areas as most significant issues. The footnote for that reference provides a bit more detail by saying:

This summit – an on-going private enterprise – met for the first time in Dallas-Fort Worth in June 2016. Representatives of agencies, including judges, insurance carriers, claimants and defense lawyers, academics, health care vendors, and others gathered for an initial discussion, and then continued the discussion at a meeting in August 2016 in Orlando, Florida. In response to a survey questionnaire distributed after the first meeting, which asked participants to indicate their ranking of a wide range of issues, the participants indicated a disparity of views, but these three issues were identified as meriting the greatest concern. Information regarding the Summit can be obtained from Workerscompensationcentral.com.

I can’t lie to you. Being intimately involved in the creation and management of this group, I was thrilled to see that the DOL had recognized efforts were actually being made to fix some of the issues their report addressed.

I was less thrilled to see them refer to a website that does not exist – there is no website known as Workerscompensationcentral.com. In an amusing twist, I was on a plane to California when the report came out, and through the wizardry of modern technology, managed to purchase that domain name and redirect it to the article where we released the first Dallas report from the Summit. All while firmly ensconced in a chair at 40,000 feet in the air, no less; just in case someone wants to wander to Workerscompensationcentral.com for more information.

The Summit is indeed an ongoing effort, and while some within the group would like to see broad and sweeping reforms as a result of our effort, the reality is likely a much more grounded “short game”, moving the ball slightly down the field with every play. This is not a grand game of revolutionary change, but rather one requiring a small win with virtually every play, and hoping that with dozens or even hundreds of those wins we may ultimately gain the overall results we seek.

The Summit hopes to meet again in New Orleans in conjunction with the National Workers’ Compensation and Disability Conference. We have a great deal to discuss, and this DOL report gives us just a little bit more to consider. But the Feds recognized our efforts, and their acknowledgement of such gives huge credibility to what we are trying to accomplish. And it means that the “National Conversation” just might be having the impact we had hoped for. People are talking – even those at the level of the Federal government.

And, despite our differences, that is a Hail Mary win in the midst of a game comprised of short advances.