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January/February 1996, Vol. 119, Nos. 1 & 2
Charles A. Berreth
Several States now recognize collective bargaining agreements under their workers' compensation statute. For example, the agreements may allow workers' compensation benefits to be determined by collective bargaining agreements if the benefits and coverage are not less than those required by law (in Hawaii); call for an alternative system (including mediation and arbitration) for resolving claim disputes (New York); or with certain limitations, extend the recognition of agreements to qualified and certified construction industries (Minnesota).
Many of the changes in workers' compensation laws focused on detecting or preventing fraudulent claims, penalties for not paying benefits or uncontested medical expenses, and issues involving coverage.
Following is a summary of legislation enacted by individual States.
Higher premium rates may not be imposed on the construction industry just because the industry has higher wage rates. Injured construction workers may not file civil suits against professional architects, engineers, or land surveyors on a construction project unless the design professional specifically (1) assumes responsibility for job site safety practices, (2) controls the premises where the injury occurred, or (3) prepares the designs and specifications negligently, recklessly, or with intentional misconduct. Unless intentional, a safety inspector is not liable for civil damages for an employee's injury resulting from an act or omission in performing or failing to perform a loss control service, a safety inspection, or a safety advisory service in connection with an employer's insurance coverage.
Insurance rate filings in general now will be approved if they contain a reasonable method for recognizing differences in rates of pay which uses a credit scale that begins at an amount equal to the State's average weekly wage.
An employee's medical and rehabilitation records may be released, without consent, to a medical provider, a party to a claim filed by the employee, or a government agency, and may be quoted and discussed in connection with appeal proceedings.
The reductions in payments to a widow or widower, which were made 5 and 8 years after death, were eliminated; however, benefits for surviving spouses continue to terminate after 10 years.
An amendment provides specifics for calculating gross weekly earnings for employees paid by the hour, day, week, month, year, or employee output, and requires that overtime and premium pay be excluded from the calculation. It also defines methods of calculating earnings for infrequent situations not specifically covered before: those employed for fewer than 13 weeks immediately preceding injury; those performing seasonal or temporary work; those on concurrent contracts with multiple employers; and volunteers in areas with no full-time paid ambulance attendants, police officers, or firefighters on which to base wages for injured volunteers. The amendment provides for subjective administrative decisions for cases in which an employee's earnings during a period of disability are not fairly reflected.
"Seasonal work" is defined as employment not intended to continue through a calendar year, but recurs on an annual basis; and "temporary work" means employment that ends within 6 months or upon completion of the particular job or contract. An amendment describes acts which constitute misrepresentation for the purpose of obtaining benefits; those convicted of doing so will be required to make full reimbursement, including costs and attorney fees.
This excerpt is from an article published in the January/February 1996 issue of the Monthly Labor Review. The full text of the article is available in Adobe Acrobat's Portable Document Format (PDF). See How to view a PDF file for more information.
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