HB 313 restores an injured worker’s choice to choose her treating physician. The House Business and Labor Committee will be voting on this bill Friday, February 15, 2019. Contact the Committee and let them know you support the right to choose your own doctor! Click to view the full February 8th hearing.
Don Lundby testifies in support of HB 313.
Rachel Englund testifies in support of HB 313.
The Labor Management Advisory Council (LMAC) is meeting during the interim. The emphasis will likely be ways to improve safety in the workplace. The best way to lower work comp costs is to reduce the number of workplace injuries. Get involved with LMAC and let your views be known!
As usual, this legislative session saw many bills to restrict the rights of injured workers, and only one to help workers. None of the worst bills became law, thanks to Governor Steve Bullock.
The only bill that would have helped injured workers, HB 229 by Andrea Olsen (D) HD 100 died in Committee on a party line vote. HB 229 would have returned to injured workers the right to choose their treating physicians in workers’ compensation cases. For now, the work comp insurer gets to choose the doctor for injured workers.
Bad bills that were vetoed:
HB 358, Revise workers’ compensation laws pertaining to release of information, by Mark Noland (R) HD 10 was Vetoed by Governor.
SB 116, Disallowing workers’ compensation benefits for certain false statements, by Mark Blasdel (R) SD 4 was vetoed by Governor.
SB 184 Revise workers compensation to allow termination of payments due to fraud, by Frederick (Eric) Moore (R) SD 19 was vetoed by Governor.
The Montana Legislature is now in session. For those that might think there is nothing more they can do to harm injured workers, think again. This session, like all previous sessions the past 2+ decades will have bills that seek to lessen or severely restrict the already low benefits of workers. Here’s a list, many still in draft form, of work comp bills this session. While there are a couple (presumption for firefighters and worker’s choice of physician – long odds against these passing) that benefit workers, most seek to further limit worker’s rights.
To let your legislators know how you feel, contact them here.
By Dean Blackaby
Great Falls legislator Ed Buttrey is leading this year’s assault on injured workers in the Montana Legislature. The legislative website identifies six bill requests by Senator Buttrey. Currently, there are drafts available for review for four while two remain as placeholders.
The available text from four of the bills demonstrates that Senator Buttrey has little regard for the Montana Constitution and even less regard for injured workers. While the system is intended to provide protection for employers as well, it should not do so at the expense of constitutional rights. His bill requests range from violating medical privacy with vague language regarding a release of information to pretending that a treating physician’s opinion should not carry more weight. His subrogation bill will threaten the recovery of injured workers with third party personal injury claims. Finally, his “fraud” bill will basically allow insurers to take a mulligan on liability decisions.
(rest of article at this link)
How often have you heard someone say something nasty about an injured worker? Was she accused of fraud? Did they suggest that she was faking her injury?
Those are some of the insults facing injured workers in Montana.
Hi, I’m Tom Murphy.
I’m an attorney from Great Falls, and I represent injured workers against insurance companies.
Worker’s compensation is not a government program.
Worker’s compensation is insurance, and there are over 600 companies licensed to provide it in Montana.
Unlike other insurance, there’s no watchdog at the Commissioner’s office alerting us to dangerous benefit reductions.
Instead, we rely solely on the Montana Legislature for protection.
Today, I invite you to think about this question: Why do we add insult to injury?
Why do employers treat injured workers poorly?
We would never dream of calling a wounded veteran a fraud, so why do we allow insurers to accuse our neighbors?
After their injury, most injured workers are immediately judged.
Before their injury, they thought workers compensation would take care of them, but that was a false sense of security.
Overnight, co-workers turn against them, and they say mean things like, “Sam got hurt – he should toughen up.”
Obviously, Montana workers are tough, and that’s a tough line, but it’s wrong.
Montana workers are not invincible. Our workers fall off roofs, they have serious accidents, and they are hurt by dangerous machinery.
When a worker gets hurt, it hurts more if a neighbor calls him a “fake.”
Where does the incentive to mistreat injured workers come from?
After 30 years as a lawyer, I conclude that it’s about money.
In the worker’s compensation system, the insurer is an unsympathetic adversary
Insurance companies hire private investigators to follow injured workers around town.
They may even record her activities in her backyard
Insurance companies hire nurses to meet with doctors to try to turn the doctor against the injured worker
And that’s only if the injured worker gets to pick her doctor.
Since 2011, the law gives the insurer the power to pick the doctor.
Guess which doctor they pick – the “hired gun” doctor.
These doctors work for insurance companies.
For about a hundred years, they’ve been called “company doctors.”
These are the doctors that used to work for the Anaconda Company.
They would say things like “Joe’s not hurt,” or “Joe doesn’t need surgery.”
The insurance companies fly these doctors all over the state, and they pay some of them hundreds of thousands of dollars each year.
That’s how valuable the company doctors are to the insurance companies.
During the 2011 legislature, insurers proposed the law that allows them to pick the doctor. The insurance companies said the law could save $54 million dollars each year.
I call this the “$54 million dollar lie.”
The insurers say the company doctor will be able to reduce medical costs by 54 million.
That either means that the doctors before were lying about the worker’s need for medical care, or it means the company doctor will lie about how much medical attention is required now.
Workers’ compensation cases are physician driven. That means the doctor makes the ultimate decision about benefits and medical treatment.
Does Montana really want the insurance companies to pick the doctor?
In addition to picking doctors, the insurer is now allowed to close medical treatment at five years.
Where do the severely injured go for medical treatment after five years?
Many injured workers end up on government programs like Medicaid or Medicare.
In that equation, the worker’s compensation insurer shifted its financial obligation to the public.
According to this law, the public must pay for the cost of medical treatment.
Is it fair that the insurer was paid to take the risk, but after it got paid, now asks the public to front the bill?
Most of us think that there’s a government agency that cares for injured workers, but that is not true.
Too often, injured workers lose everything after their injury. They lose their houses, their credit, and many are severely depressed.
We don’t like to think about people getting injured, but please try to support the worker who was hurt while trying to make a living for his family?
Please do not allow the insurers to foster the judgmental belief that injured workers are frauds, fakes, and money grubbers.
Montana should be concerned about such judgment, because this could happen to you, to your son, or to your daughter.
In October, I’ve been asked to speak at a national conference of worker’s compensation attorneys.
I’m supposed to explain why Montana allows insurance companies to close medical coverage.
My answer is greed, but the question should cause concern.
The whole country is asking why Montana allows insurance companies to close medical care for injured workers, so with your help I hope Montana asks that question too.
This is Tom Murphy.
I’m an attorney from Great Falls, and I represent injured workers.
Thank you for listening.
Please note: The meeting will be held at the Best Western Great Northern Hotel in Helena.
Agenda
Labor-Management Advisory Council
Tuesday, July 22, 9:00 am – 4:00 pm
Best Western Great Northern Hotel, Helena
DRAFT Agenda – An issue may be discussed earlier or later than listed.
I. Welcome and Introductions Lt. Governor Angela McLean
II. Approval of Minutes/Agenda
III. Economic Affairs Interim Committee Report
IV. Employer/Employee Response to LMAC
V. Funding Task Force Recommendation
VI. LMAC Safety Committee Report
VII. State-Based OSHA Program Discussion and Decision
VIII. Designated Treating Physician Task Force
IX. Workers’ Compensation Statute Review: 39-71-1006, MCA
X. Vocational Rehabilitation Proposal
XI. LMAC/Lt. Governor Notification Letter Discussion
XII. WorkSafeMT Update
XV. Public Comment Lt. Governor Angela McLean
• Meeting handouts are posted on the LMAC website one day before the meeting:
http://www.mtlmac.com
• Lunch will be provided at noon.
Subrogation – Another attempt to reduce what an injured worker can receive in Montana. Presented to Economic Affairs Interim Committee 7-15-2014
The choice you are facing with changing the subrogation law is quite stark and clear.
Current law – individual case by case determination of equity/fairness: Injured workers who bring a claim against a third party are able to assert that there should be no subrogation until they have been made whole or received full legal redress for all their damages and the costs to obtain those damages. AND, insurers have a statutory right to dispute whether the injured worker has or has not been made whole or received full legal redress, including to argue that the injured worker is receiving double payments.
Proposed Changes – no determination of equity/fairness: The legislature will determine by statute that no matter what the facts in each individual case, there will be subrogation, with no examination of the equity or fairness in that individual case, AND injured workers would have no right to dispute that.
It is not just “made whole,” it is also about full legal redress under the Constitution.
Francetich:
“We hold that 5 39-71-414 (6) (a) , MCA, is unconstitutional in light of the clear and direct language of Article If, Section 16, of the Montana Constitution. We hold that in a case of reasonably clear liability where a claimant is forced to settle for the limits of an insurance policy which, together with claimant’s workers’ compensation award, do not grant full legal redress under general tort law to the claimant, under workers’ compensation laws the insurer is not entitled to subrogation rights under 5 39-71-414, MCA .”
Francetich has not been overruled.
Assessing fault or contributory negligence is likewise unconstitutional.
“The Zacher formula does not contemplate a deduction from a claimant’s entire loss for his or her comparative negligence. This is in accordance with the Workers’ Compensation Act, which does not consider a claimant’s fault in determining benefit eligibility. Reducing the calculation of McMillan’s entire loss, and thus his eligibility for benefits, for his comparative negligence would introduce consideration of the claimant’s fault into the workers’ compensation system-a clear violation of the history, purpose and language of the Act.”
Subrogation is not a cure all for insurers, the reality is that most cases involve low third party insurance limits, like Francetich ($25,000 limit). The one case with a large amount of money available for damages was McMillan, where the US government was the defendant.
—————-
The interim Committee will not have a Committee bill on subrogation, though the chairman, Sen. Tutvedt, has made an individual bill request.
The next LMAC meeting is July 22, 2014 in Helena, MT at the Great Northern Convention Center.
Check the LMAC meetings page for the agenda and meeting materials, including materials from past meetings.
You can send comments on the Montana Workers’ Compensation system here or you can contact individual members on the LMAC membership list.
You can access the agenda and materials here.
Among the agenda items:
Welcome and Introductions Lt. Governor Angela McLean
Economic Affairs Interim Committee Report – Pat Murdo, Legislative Services
Vocational Rehabilitation Proposal – Don Agan, MS, CRC
Designated Treating Physician Task Force – Diana Ferriter, ERD Administrator, Al Smith, Bonnie Lyytinen-Hale, Chris
Cavazos, Bob Worthington, Kevin Braun, Dave Lighthall – A proposed amendment to the current statute was agreed to for sending to NCCI for pricing.
State-Based OSHA Program – Diana Ferriter, Bryan Page, Chief, Occupational Safety and Health Bureau
WorkSafeMT Update – Robyn Morrison, WSMT Exec. Dir.
Responses to LMAC Notification letter – two injured workers and one employee representative testified; written responses will be cataloged by staff for future consideration. Thanks Jack and Keith for speaking up for injured workers!
Labor-Management Advisory Council
Thursday, May 22, 9:00 am – 4:00 pm
Best Western Great Northern Hotel, Helena
This will be the first LMAC meeting chaired by Lt. Governor Angela McLean. The public is welcome to attend or comment, especially workers who are in or have been in Montana’s work comp system.
Highlights: Designated Treating Physician Discussion; LMAC Safety Committee Report;
Can’t make it – leave a comment for the LMAC.
MT Injured Workers 