Document bOgJOwz4OGBeB1Z159Q6D4n16

<*n o A- .-/km.en's compensation premiums are going up- How high `:.jy depend on the Congress which will be considering a Federal workmen's comp hill this season. Presently, the -dll's authors are flirting with an occupational disease benefits formula that would prove mighty costly . . . 41-10223 OCCUPATIONAL HAZARDS. EXECUTIVE P.EPCF MO. iO.CCC SPRING 1975 PLAINTIFFS EXHIBIT JM-1861 !* ,000 ms? Legislation establishing minimum Federal standards for workmen's compensation is virtually certain to be introduced in this Congress. The bill would doubtless require the States to peg benefit levels to the average weekly wage in the State, permit benefits to rise with wage averages, and continue benefits for life or the duration of the disability with no arbitrary cutoff date or amount. It may also order States to expand coverage to all employees, and to ease eligibility requirements for claimants. If such legislation is enacted, your workmen's compensation will go up. Whether'they'rise like a balloon or a Satum rocket will most likely de pend on the law's occupational dis ease provisions. In the past. Congressional leaders of the drive to establish Federal standards, notably Senators Harri son Williams (D-NJ.) and Jacob J3'.its (R-N.Y.). have favored for mulae for eligibility similar to those contained in the Black Lung Bene fits Act of 1972. Under that law a coal miner needn't prove conclusively that he Black Lung disease in order to C'jA:;v for cn award. The law re= the compensating authority to Ttc'cme the claimant is suffering black lung and that the disease is work-related if he meets certain conditions of disability and work history in coal mines: If a miner worked 10 years or more in coal mines and is suffering from pneumoconiosis (black lung), there-is a reouflable presumption that his disease arose out of or in the course of his employment. If a dead miner worked 10 or more years in coal mines and died of a respiratory disease, there is a rebuttable presumption that his death was due to pneumoconiosis. If a miner suffers (or suffered before his death) a chronic dust dis ease, and X-ray, biopsy, or autopsy shows opacities or lesions character istic of pneumoconiosis, then there is an irrebuttable presumption made that he is totally disabled by occu pational pneumoconiosis. If a miner has worked 15 years in the mines, in cases where evidence establishes existence of a totally disabling respiratory or pul monary disease, even if X-rays are negative, there is a rebuttable pre sumption made that the miner is a victim of black lung. The presump tion can be rebutted only if it can be established that the claimant did not have pneumoconiosis, or that the respiratory or pulmonary' impair ment did not arise out of or in con nection with his employment. These are the controversial "pre sumption" features of the Black Lung Benefits Law. Since Congress enacted them, critics have dubbed them everything from a monumental treasury raid to a miners' pension program masquerading as work men's compensation. Present indications are that a Federal workmen's compensation standards bill would require com pensating authorities to make simi lar presumptions about other occu pational diseases in cases where medical evidence indicated a con nection between the diseases and certain jobs or industries. For ex am p 1 e, ijisulation^wgiiixS--Slho worked- with asbestos might be presumed to be sintering job-related disease if they developed asbestosis after 10 or 15 years on the job; foundry workers or glass makers who developed silicosis after years on the job might be presumed to have an occupational disease. These arc, of course, only examples. At presslime no Federal standards bill had yet been submitted. There are. however, several likely candidates for inclusion in the occu pational disease coverage provi sions, in addition to the diseases ----- Spring 197J/OH fXfCUnv^ KPOITT JT "Black lung costs, first estimated to run $40 million a year in fact exceeded $328 million the first year and then soared to $ 1 billion a year. The A.\II.4. puts a yearly S3 billion pricetag on proposed workmen s comp benefits." named: berylliosis (for beryllium workers), byssinosis (workers in cotton textile plants), taleosis (any one exposed to talc in the paint, rubber, paper, or other industries), angiosarcoma of the liver (workers exposed to vinyl chloride), and lung cancer (for coke oven workers in the steel industry). Retroactivity of benefits is an other feature of the Black Lung Benefits Act that may find its way into Federal minimum standards legislation. The Black Lung Act ex tends benefits to miners who stopped working in the mines before December 30, 1969, the day the law was enacted. Constitutional question Are retroactivity and presump tions constitutional? . There is no doubt about retro activity. The United States Supreme Court has upheld a decision by a U.S. District Court (.National Inde pendent Coal Operators Association v. Brennan) that held retroactive benefits are constitutional. The Court ruled Congress intended to make benefits available even to older, retired miners who developed symptoms of black lung long after they quit the mines. About presumptions, there are still a few questions. The Supreme Court appeared to uphold presump tions in the case brought by the Na tional Independent Coal Operators when it refused to alter the U.S. District Court's decision. The lower court had ruled the Secretary of Labor was not violating the consti tution when he established ground rules for implementing the presump tions contained in the Black Lunc Benefits Act. The judges ruled pre sumptions "do not and will not de prive the plaintiffs of their property without due process, of law or deny them equal protection of the law." U.S. District Court for the East ern District of Kentucky has taken a slightly different position in the case of Turner Elkhorn Mining Co. v. Brennan. The Court upheld the rebuttable presumptions of the Black Lung Benefits Act: that the disease arose out of employment if a miner suffers black lung after 10 years in the mines, and that he's presumed to have black lung after 15 years in the mines even if X-rays are negative. The Court struck down as uncon stitutional the irrebuttable presump tion that a miner suffering acute pneumoconiosis is automatically as sumed to be totally disabled. Proof that a disease exists and proof that the victim of the disease is totally disabled are two different matters, and each must be defined and pre scribed separately, held the court. Also held as unconstitutional was the requirement that the compensat ing authority could rebut a miner's claim only by proving the miner did not have pneumoconiosis. The Court held the compensating authority should be free to produce whatever evidence may be admissible general ly to rebut the presumption. As things stand now: The rebuttable presumptions have been upheld, though the com pensating authority has a freer hand as to what type of evidence he may present to disprove a claim. The irrebuttable presumption that acute pneumoconiosis is totally disabling has been struck down. Claimants must prove disability as well as disease. Retroactive benefits have been upheld. The U.S. Department of Labor has appealed the decision in the Elkliorn Mining case to the Supreme Court. Most legal observers feel that, considering the high court's ruling in the National Independent Miners Case, there's a better than even chance the Elkhorn decision will be overruled and that all the presumptions contained in the Black Lung Benefits Act as written by Congress will be reaffirmed. Skyrocketing costs So far, only the Federal govern ment has had any measurable ex perience with the cost of black lung claims. That's because all awards allowed before July, 1973, are paid out of the Federal treasury. The mine operators have been paying for less than two years--not long enough to have amassed conclusive cost data. But, if the Federal government's experience is any yardstick, costs for operators are going through the roof. During the 1969 Congressional de liberations on black lung benefits, estimates on the cost of the program were running at about $40 million a year. In fact, the cost in the first year alone exceeded $328 million, and has since jumped to an annual rate of about $1 billion a year. The American Mutual Insurance Alliance has sought to put these fig ures into perspective: "These huge expenditures are for one disease in one relatively small industry. The annuat expenditure of SI billion may be compared with an expendi ture of about S3 billion for total in curred medical and compensation benefits for all types of injuries and occupational diseases throughout the United States." Now that the mine operators arc responsible for black lung benefits, they're paying through the nose. Lust year, the National Council on 3 O- [ifC'JTIVI RSRORT/Spriitg 1973 N' - >'., .jgSEff -...-, -v-ar sasS I:-'---.;-V. -- .':V*''Vz.5v3Hs,'.i&v>n* ?yv.saB&yMmii * >:; ...*r-iu<."jfijyTK*iigj)^| . lr,r X'!>"*2f**gS&L liim"-rm, 8&dSggSt2S^gSCS%&W Senators Jacob Jovitj (left) and Harrison William* confer during a break in committee hearings. They plan to reintro duce legislation to allow suits against Stoles and employers failing to meet Federal standards. Compensation Insurance estimated operators were paying an average premium of S25.90 per SI00 pay roll in coal mining States where pri. vate carriers write ail policies. In States with a competing State fund the premium is lower. In Colorado, for example, the premium was SI7 per SI00 of payroll. Keep in mind that, because of the black lung benefits package, coal mining is the only industry paying two sets of premiums: one for occu pational disease, a second for trau matic injury. So, add that S25 per SI00 to a second substantial acci dent compensation premium. In Alabama, for example, a mine op erator will pay S25.49 per S100 for occupational disease coverage and SS.95 lor injury coverage. Total: So4 .4-1 p;r SI00. There is some indication that the high cost of black lung benefits to the government is the result of its having to do a lot of catch-up, pay ing off all the claims that accumu lated until Congress acted. Now that mine operators are developing an experience with claims, some insur ance officials believe the cost of oc cupational disease insurance will come down. Mrs. Nancy Snyder, associate di rector for coal mine workers' com pensation, Office of Workers' Com pensation, U.S. Department of La bor, noted: "We have right now only a 20-percent approval rate, and I frankly don't see it getting much higher than that in the future. In fact. T think it may decline. Because we have experienced an unfortu nately high denial rate, the coal mine operators will probably be paying lower rates for occupational disease coverage." Our sources at the National Council for Workmen's Compensa tion note that most States will be taking a second look at their individ ual rates later this year. It seems likely that most States will lower their rates--some predict by about one half. Of course, even SI2.50 per SI00 payroll just for occupational disease coverage is a lot of money. The average payment for all industry is S2 per SI00, and that provides both accident and disease coverage. The lesson Carl Bngge. president of the Na tional Coal Association, issues this Sprina 1975/OH KECUT1VJ *ETO*T 39 "A warning to American industry: "Black lung is the first major occu pational disease to be treated com prehensively. but black lung is only the tip of the iceberg. Clearly, there are literally millions of workers who are exposed to occupational health hazards and who. in fact, are killed or disabled by those hazards. The inexorable logic which brought black lung compensation to the coal indus try must, in time, bring the same sort of coverage to all other industries. Thus, the same questions to which we are now addressing ourselves will be asked by other industries facing staggering occupational disease ben efit costs, questions relative to the cost of the program, to eligibility determinations, to retroactivity, to governmental responsibility levels, and all of the areas connected with a complicated program of this type." Last year Senators Harrison Wil liams and Jacob Javits introduced a Federal minimum standards work men's compensation bill that con tained presumptions and retroactiv Yes. our organic vapor analyzer Is portable, yet detects and measures numerous organic vapors such as methane, vinyl chloride, styrene, and benzene In concentrations to less than V4 ppm. Our lightweight surveying Instrument, capable of analyzing various gas mixtures. Is extremely easy to use end saves you ctiomsetlybeacnad.us.t.iemeit-ceolinmsinuamteinsg laboratory analysis. '' -f**11 ^--gsjlT, .T j gSs a r-v--i-J tt---- --an- j Btnch/Rack Model losuoursstai tionery unit that measures hoc moist temples. Call or write us today tor more information. Circle no. 38 on feeder service cord 30 CH EXlCVTIVt KfPOXT/Spring \97$ ity for several occupational diseases. The bill quietly died in committee, but be advised that's not the end of the controversy. "We'll be reintroducing the Fed eral standards bill in a revised this year." Senator William Executive Report: "We p j change the enforcement mechanism in deference to the State system so that the Secretary of Labor or the claimant may bring suit in Federal court against a State or employer failing to meet the minimum Federal standards enumerated in the law. But apart from that change the bill won't be all that dissimilar from its predecessor. And, I might add, we're most optimistic concerning its pros pects for enactment in this Congres sional session." On the House of Representatives side. Congressman Dominick V. Daniels (D-N.J.) chairman of the Subcommittee on Manpower, Com pensation, Safety, and Health, has officially announced: "I intend to introduce appropriate workers' com pensation legislation in this session of Congress." Opponents of Federal minimum standards legislation argue that the States, by improving their coir* -sation coverage and benefit have effectively eliminated the a for any Federal law. They believe the Ford Administration is com mitted to States rights, and to hold ing the line of Federal spending. It's unlikely, in their view, that Presi dent Ford would sign a bill infring ing on the States and setting up a costly new benefits program. Proponents of Federal workmen's comp legislation insist that its time has come and that Congress shares this feeling. They attach consider able significance to Senator Wil liams' remark to an Occupational Hazards' Executive Report editor when Williams was asked if con siderable anti-recession legislation being funneled through the Senate Labor and Public Welfare Commit* tee might table a workers' compen sation standards bill, for 1975. Chairman Williams responded promptly and decisively. "Our com mittee's resources may be taxed by the legislative demands of the ' omy, but, nonetheless, wo compensation standards and ers' safety and health won't take a back seat. They're matters of con siderable priority." 9