Workers Compensation bill called migrant scare tactic

Deseret News (Salt Lake City), Dec 6, 2007 by Deborah Bulkeley Deseret Morning News

A Utah County lawmaker wants to hold both employers and employees more accountable when it comes to wage benefits in disability claims.

But critics say the reform to Workers Compensation Fund benefits proposed by Rep. Michael Morley, R-Spanish Fork, would be so broad- sweeping that many workers, including undocumented immigrants, would find themselves unable to obtain benefits.

Morley said he didn't intend to target undocumented immigrants with his proposal. Instead, he wants to prevent employers from directly paying benefits to injured workers, rather than filing a claim with the Workers Compensation Fund; and at the same time prevent employees from obtaining disability wage benefits if "but for their own actions, they would be able to return to work."

The legislation wouldn't impact medical benefits, but Morley said "if the person is unable to return to work because he is in jail or because he is fired with cause ... why should the employer or Workers Compensation continue to pay his (wage) claim?"

However, at a meeting Wednesday of the Workers Compensation Advisory Council, a draft of Morley's bill was described as overly broad by attorneys who represent injured workers.

The bill's language places a criminal-level burden of proof on employees seeking to rebut a denial of a claim under some circumstances, said attorney Richard Burke, adding, "It is so loose and so vague, it (could) be abused."

Morley said the draft will likely see some revisions before the upcoming session, adding, "the reason we floated it out there today was to get some input." The council, which will not be meeting again before the 2008 session, did not vote whether or not to support the proposal. The part dealing with employers' payment of claim received little discussion and may be introduced as a separate piece of legislation.

On the employee responsibilities, James Olsen, a council member and president of the Utah Food Industry Association, said his group had wanted to address the issue of "those situations in which employees are brought back on light duty and they're terminated for cause," such as if employees steal or stop reporting to work, or if they don't return to work because they're incarcerated.

But concerns raised included whether a disabled or injured person would be able to find new employment if they were fired, and what impact that would have on the injured worker's family.

"Who are you to penalize the wife and children at all, who have absolutely no means of support," said Brian Kelm, a council member and attorney who represents injured workers. "This needs to be killed outright."

Attorney Mike Martinez said the bill appeared to be nothing more than an anti-illegal immigration "scare tactic" aimed at cutting off undocumented workers, while leaving their employers shielded.

"We're getting back at the illegal/undocumented situation with this language," Martinez said, pointing to a part of the statute that says "criminal conduct" could cut a worker off from benefits, if they're undocumented and therefore returning to work would be illegal. If that were the case, Martinez said, the Workers Compensation Fund would keep its payments and an employer would be shielded from an increased premium. It could go so far, he added, as requiring all workers to prove legal status to obtain disability benefits, while creating an atmosphere of fear in which immigrants don't even apply.

However, after the meeting, Dennis Lloyd, the fund's senior vice president, said: "We do not go out and try to investigate or second- guess whether a worker is documented or undocumented."

A worker's status sometimes does become apparent, however, and that presents a unique situation, he said.

"We can't violate federal law, so we are left with the challenge of how can we adjust the benefit of injured worker," Lloyd said. "What Rep. Morley suggested in his bill ... If this worker is alleging permanent and total disability, and it is illegal to re- employ the worker, does that mean the worker should now receive permanent, total disability?"

LLoyd said parts of the bill do merit a public policy discussion. He said that perhaps rather than cutting off an employee completely for failing to cooperate, perhaps partial wage benefits could still be awarded. And he noted that the burden of proof of "clear and convincing evidence" for temporary claims sets a very high standard.

"The concept that employers should cooperate and employees need to cooperate ... we support that whole-heartedly," he said. "The devil is in the details. Rep. Morley has made a reasonable start."

E-mail: dbulkeley@desnews.com