Legislative Primer: What Lawyers Can Do to Push for Worker-Friendly Laws

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Transcript

Workers Comp Matters

Legislative Primer What Lawyers Can Do to Push for Worker-Friendly Laws

8/28/2020

 

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Intro:  This is Workers Comp Matters. Hosted by Attorney Alan S. Pierce. The only Legal Talk Network Program that focuses entirely on the people and the law in workers compensation cases. Nationally recognized trial attorney, expert and author. Alan S. Pierce is a leader committed to making a difference when workers comp matters.

 

Judson Pierce:  Welcome to Legal Talk Network and Workers Comp Matters. My name is Judson Pierce. I’m an attorney at Pierce, Pierce and Napolitano in Salem, Massachusetts and today we’re bringing you another edition of Workers Comp Matters with guest Amy Peters. Amy is a duly-licensed attorney in Washington. Her practice emphasizes representing injured workers. Amy is an active litigator in all Washington State Courts as well as the supreme court of the United States, the U.S. Court of Appeals, 9th circuit and the U.S District Court for Western Washington. Amy has a long and varied background both representing youth in law school as well as being active with various professional organizations and a very active and past president of the Workers Injury Law and Advocacy Group, which is where I met you, Amy, some years ago and now as a past president, I’m sure you’re a little less stressed out and all the responsibilities and obligations you had as a president of that great organization. So, I’m very happy you’re here. Welcome.

 

Amy Peters:  Thank you for having me.

 

Judson Pierce:  And I would like to also give a shout out to pinow.com, our sponsor. Find a local qualified private investigator anywhere in the United States, visit pinow.com to learn more. And today, we’re talking about federal legislative initiatives and what we are doing as advocates for injured workers in congress and speaking with our representatives there. Amy, you have been very active in this for a long time. Can you give us a little bit of a background of what you’ve done in the past and where we are today.

 

Amy Peters:  Yes. So, I’ve been involved in largely through WILG, the Workers Injury Law and Advocacy Group. I’ve been involved in our lobbying efforts at the federal level for now about five years. And over the course of those five years, we’ve kind of focused on four major initiatives. The first initiative is we’ve worked on worked as part of a broad coalition to improve the Medicare or Medicare set-aside rules in the country to make them a little bit fairer for workers and actually for employers as well. The system right now is very focused towards Medicare having a lot of control that doesn’t match what happens on the state workers comp side and so, we’ve been trying to fix that. The second big thing that we’ve been doing is we’ve been trying to establish more federal oversight and minimum standards for workers compensation around the country. Starting in 2011, we started to see a lot of media press coverage about the variances around the country and what workers comp benefits are available to workers. We saw a huge gap between even workers who live right across the state border from other workers. One worker will get tremendous benefits while other workers will get minimum benefits. So, we’re trying to even out the gap. And then finally, we talk about our two federal workers comp programs and these are the other two major initiatives that WILG is always looking at. The first is our Federal Employees Compensation Act and over the years there’s been some attempts to reform those workers compacts. It’s largely been tied to postal reform and so our organization very closely monitors the Federal Employees Compensation Act and make sure that any modifications that do happen are in workers interests. And then finally, we monitor the Longshore Act and all of its extensions which basically is where injured workers who work under federal contracts or over the water which are federal jurisdiction are covered and we again, monitor to make sure that any changes to the Longshore Act or its extensions are worker friendly.

 

Judson Pierce:  Thank you. Now, I failed to introduce you as a member and principal of Bluewater Legal and you and your sister founded that. I take it by the name you have some experience in Longshore Act cases, right?

 

Amy Peters:  That is primarily what I do. I’m a maritime attorney which makes me a little strange and willing talking with regular workers comp attorneys, but I started out my career doing straight state workers comp and longshore.

 

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In 2011 when I started Bluewater, that’s when I switched pretty much completely over to maritime law and primarily doing Longshore and Jones Act work.

 

Judson Pierce:  What do you like about the practice? As a state comp attorney, I haven’t had any experience in this type of act. What is it that makes it so intriguing to you?

 

Amy Peters:  I actually like my clients the best. That is the big reason why I ended up really focusing in the Longshore Act. They remind me of my uncles, my father, my grandfather. Just kind of their personality. I came from a pretty blue color background and so I just love my clients. It’s also interesting to have a system where there’s not a lot of advocates in it. In Washington State for example even though we’ve got two major ports and upwards of eight sub-ports, there’s a handful maybe six attorneys who have any significant experience under this Act. And so, it’s nice to be part of a small pool of attorneys. It makes kind of having a practice very referral-driven. I don’t have to fight for cases as much as other attorneys do. So, personally, I like that aspect of it.

 

Judson Pierce:  Now, are you also able to represent folks from all over the country in different jurisdictions, not just Washington?

 

Amy Peters:  Correct. Right now, I’ve got clients the way up from Alaska. I think our furthest away client right now is North Carolina. We tend to try to stay pretty focused here in the Pacific Northwest, but for example, there are no longshore attorneys in Montana. So, I almost always have between two and five clients from Montana who end up either injured here in Seattle up in the waters and in Alaska or their independent contractors at military bases overseas.

 

Judson Pierce:  And so it would be under their home jurisdiction that the case would be proceeded?

 

Amy Peters:  In Longshore cases, we actually send judges out from six regional OALJ offices. So, all these cases are administered under the U.S. Department of Labor’s auspices and so we send out judges. Most the judges for the West Coast come from San Francisco including when they send judges up here to Seattle. And so, we use basically the Federal Courts and the Administrative Courts of the U.S. Department of Labor.

 

Judson Pierce:  And you mentioned extensions and I had a question about that. What does it mean when you talk about Medicare extenders or tax extenders or extensions under the Longshore Act? Can you elaborate on that a little bit?

 

Amy Peters:  The Medicare extenders are different than the Longshore Act extenders.

 

Judson Pierce:  Thank you that. I’m glad there’s a difference. Okay.

 

Amy Peters:  There definitely is a difference. So, when we’re talking about the Longshore Act, basically there are two federal workers comp statutes. The ones for federal employees, which have a very different system because it’s basically just the government administering its own workers comp system and then for non-government employers, which Longshore is covered under there’s a few other instances where congress has determined, hey, we need another federal workers’ comp system. So, they just plug them under a Longshore and what that does is that allows like for example one of the biggest extensions of the Longshore Act is the Defense Base Act. What that says is our independent contractors who work overseas aiding largely our military or our government under U.S. contracts so think KBR or Halliburton. Those contracts or those employees are covered under workers comp here in the states through the Longshore Act and it’s one of these extensions. And so, it’s just kind of a catch-all where whenever congress decides, hey, we need a federal worker’s comp system for a private employer, they stick them under a Longshore.

 

Judson Pierce:  I see.

 

Amy Peters:  Where Medicare extenders when we’re talking about that, we’re really talking about kind of the legislative process and the appropriations process to make sure that Medicare has got the money that they need.

 

Judson Pierce:  Have you seen any recent developments in congress about funding? Any of these agencies? DOL or Medicare?

 

Amy Peters:  Right now, surprisingly, well, we are going to see some upcoming bills on Medicare. There are some of the appropriations that absolutely have to pass by the end of this congress. So, we will definitely see some appropriations that deal with Medicare. Our hope is and the Medicare bill has been going for a long time and it’s not the juiciest of things for congress, but we’re hoping that we can slide that one in as we continue to work with that later this year. But the major focus this year has not surprisingly been on COVID and so the that meant that the focus has really shifted away from some of our kind of national workers comp focused priorities into a priority that really is focused on essential workers, making sure that they’re or trying to make sure that there are some guidelines for safety, making sure that our federal workers are covered adequately under the federal workers comp system and we largely did that administratively.

 

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And so far, we have not had to do much with appropriations there. But with Longshore, we’ve actually been successful in introducing as part of the House Heroes Act a provision that would provide significant supplementation to Longshore and basically, it would subsidize the Longshore COVID cases if it passed. Now again, it’s just passed out of the house. It isn’t part of any senate package. The senate of course being controlled by the Republicans haven’t included that, but as we kind of move into the process of marrying the house bill and the senate bill, we’re still pushing to try to get that Longshore provision enacted and more longshore workers who have coveted covered adequately.

 

Judson Pierce:  What are attorneys to do being that we can’t go to D.C and walk the halls of congress right now? I know you’re relying a lot on emails and letters and such, but can the ordinary citizen or his or her advocate do the same?

 

Amy Peters:  Absolutely. Emails, letters, calling your senator or congressperson’s office is a great way to get in touch and really emphasize the importance of protecting our essential workers and essential workers are really broad. We’re not just talking about doctors and nurses, first responders. We’re talking about anything from a grocery worker to a longshoreman. For example, the longshore bill, part of the reason why we’re trying to build these subsidies, anything that come, any products that come into this country have to go through our ports. The majority of our products come in through our ports and so if our longshoremen aren’t safe and aren’t adequately protected during this COVID crisis, it’s a very big problem and we’re going to see some impacts on the economy.

 

Judson Pierce:  One of the quotes that I read that you wrote in a recent article was workers comp is an everyone issue, not just the state issue and I found that very, very helpful to understand the grand scale of this that there really does need to be some federal leadership here, doesn’t there?

 

Amy Peters:  There absolutely does. That’s always been one of my guiding principles. When I first got into this practice and once a year WILG would take a bunch of us lawyers down to the halls of congress and we would meet with congress people, we always got the feedback. Well, and it was from both Republicans and Democrats. Well, workers comp is a state issue and that is so entirely wrong because our whole economy runs on America’s workers and if we’re not protecting those workers, we’re going to have a huge problem nationwide and then on top of it, congress is actually in charge of two very large workers comp statutes and because congress doesn’t always recognize that it is in charge of these statutes, sometimes these statutes either lag behind in a good way or a bad way from what’s going on in the states.

 

Judson Pierce:  Well, right now, I’d like to just take a quick break for our listeners and we’ll come back in just a few moments.

 

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Judson Pierce:  We’re back with our special guest attorney, Amy Peters of Washington State and we left off at America running on its workers and that these workers need protections. I’m from Massachusetts, so I run on dunkin, which is Dunkin Donuts’s motto. So, I totally understand what you’re saying here. We need our workers to keep the economy up and running and we have seen in this particular year how necessary these essential workers are to our everything, from school teachers to grocery clerks, to you name it and I think you put it very, very well, Amy. What can we do to assure that states have adequate COVID presumptions> Now, I know that we were talking a lot about the federal acts but the states do need to be observed here I think from the federal perspective in terms of protecting their workers. What legislatively can be done to make sure that there’s some state minimum standards?

 

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Amy Peters:  From the federal government side, we haven’t seen the federal government in either houses of congress really adapt anything that tells the states what to do with COVID and we also don’t see that leadership from either the U.S. Department of Labor or the president’s office on COVID-related issues and so federally, we’re not seeing any leadership to the individual states. But what we are seeing is a lot of the states take a real leadership role around the country. We’ve seen states that have adopted some legislation, but largely it’s coming through administrative rules and states kind of noticing, hey, we have to protect our workers, we have to stand up and be there for these workers who have been there for our state. And so, that’s been very positive to see in many states around the country, but I do agree with you it would be wonderful to have some leadership from the federal government that really just stands up and says we’re really going to protect these workers and we’re really going to stand there beside them.

 

Judson Pierce:  Right. I’m just looking over a July 4th publication from the WILG group. I think Eliot Sher put together for us. He put together all the different states that have either passed or proposed COVID first responder presumptions and it seems to be a fair amount of states that have passed it. When we were discussing some years ago a minimum standards type of bill in the legislature, do you think that this type of emergency would sort of help propel that to get some more attention?

 

Amy Peters: Absolutely.

 

Judson Pierce:  Yeah.

 

Amy Petes:  I’m actually really excited about the focus on workers and essential workers, our everyday Americans who hold up this country because as we’re focusing on them right now for COVID, that leads us in the coming years when COVID isn’t the focus to talk about how now’s the time for us to reevaluate how we’ve treated these workers for decades and we saw how they stood up for us, so now, it’s time for America to return the favor now that they’ve gotten us through this crisis and so I definitely think that that’s going to move us forward with minimum standards and propel us into a new kind of decade in workers comp.

 

Judson Pierce:  Do we have some advocates who are helping us either in the house or the senate, people who we can go to regularly? I remember Senator Brown from Ohio who was someone who we were really working hard with. Are those people still there and are they running for re-election? Can we help them?

 

Amy Peters:  So, we have key help on both sides of the house or both houses in congress. On the house side, Bobby Scott who leads the house and labor committee, he has been instrumental in bringing forward legislation and talking with workers advocates and I’ve met with him numerous times and I speak regularly with their staffers. Their understanding of what American workers go through is amazing and so he’s been one of our prime advocates. That’s not to say that there aren’t many other house advocates. We’ve enjoyed a number of them, but I’d say he’s probably prime. And then on the senate side, similarly Patty Murray here in Washington State has been a key advocate because she comes from kind of a maritime state on some of the longshore bills. Her staff really understand the issues and so I’d say those are our two leading advocates around the country. As you mentioned Sherrod Brown, he’s been key in the minimum standards bills that we’ve been talking about on the senate side. So, before the COVID crisis hit, I would actually raise him right up to the top of one of the legislators who’s really understanding workers rights and workers compensation.

 

Judson Pierce:  Are federal legislators also helping us with regard to protecting our postal service employees? I know that that is a big topic of conversation around the country right now. What are we doing as an organization to make sure that the U.S. Postal Service has what it needs and those employees and their rights if they get injured are protected?

 

Amy Peters:  So, the postal service is a key place where we spend a lot of time advocating this year and I really want to call out to WILGs (00:189:28) section. Their leadership there with Wayne Johnson and Steve Brown and Dan Goodkin have really led the way in talking about how postal service employees really need to be protected, but also the importance of the postal service in general. Our workers compensation system runs on the postal service. Injured workers rely on the postal service to get their checks, they rely on the postal service to get their medication.

 

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And so this fight to kind of minimize the postal service and to make it less effective is really impacting injured workers in a way that we don’t want to see and so our organization has really stood behind the efforts to make sure that our postal service is adequately funded and make sure that the postal service has what they need to get through the COVID crisis, but also the election which is where we’re seeing a lot of the push come.

 

Judson Pierce:  Yeah. The election is – well, the general uh presidential election is less than 80 days away, 70-something days away. From a worker’s comp perspective, what ideally would happen, right? Would the senate become Democrat majority, would there be a Democrat in the White House? What would need to happen to see some more legislative change for the better take place for injured workers?

 

Amy Peters:  Well, the first thing I want to emphasize is workers comp isn’t necessarily a Democratic or a Republican issue. We oftentimes see a lot of Republicans who support workers comp issues and so that’s an important thing to highlight is it’s definitely a bipartisan issue. Now, to answer your question more directly, yes, we get a lot of support for Democrats. You’ve heard me mention some politicians that have been key in some of our fights, they are democrats. And so, ideally, from our standpoint if we controlled the senate, the house and also the White House, it means number one, we can actually pass some of the legislation that we’ve been talking about. We can really get legislators to focus on issues and actually make some movement on issues that are really important to workers and workers comp in general, but it also means particularly for our longshore and our federal employees, that we can have an agency that really stands behind their workers and make sure that we push some agency reform that is essential and we’ve seen downgraded over the last four years as we’ve seen less individuals who are monitoring these cases, we’ve seen more changes in kind of the policies that impact these workers and they’re very much trying to centralize how these federal claims are administered and it’s not always in favor of workers. We’re seeing the Department of Labor give a lot of voice to employer concerns and not give voice to the worker concerns and that has been a very big shift from the previous eight years where workers voices were very much listened to.

 

Judson Pierce:  Right. What is the downside if you had to play devil’s advocate and think what the opposing view would be? I mean, employers are paying a dollar of a hundred dollars in payroll in the state workers comp system to workers comp. Premiums are going up and insurance company profits are going up but employee benefits seem to be diminishing. What is the downside to just making sure that workers are more adequately protected not only with benefits but with safety protections? What is the downside?

 

Judson Pierce Amy Peters:  You’re asking the wrong person.

 

Judson Pierce:  I mean, I suppose if we want to foster change, we need to know what the other side is thinking what they don’t want to happen.

 

Amy Peters:  From an employer standpoint, employers are being told by their insurance companies that your premiums are going to raise if we have to pay workers better benefits. Now, from a plaintiff’s or a workers’ advocate standpoint, I don’t believe that. Insurance profits are rising. Workers compensation is the second most profitable line of insurance in the country behind motor vehicle accident insurance and so, when we talk about insurance profits and in fact, many states have looked at it at a state level, but we need to start looking at it as a nationwide level. Workers compensation is profit-driven and when insurance companies stand up and say, oh, premiums are going to rise. What they’re really saying is we want to keep our profits high and that’s where the problem is coming is insurance companies are scaring employers into thinking protecting their workers isn’t a good thing for them because it means that they’re going to have to pay more in compensation. In fact, on this subsidy bill for longshore, we’ve seen a number of shipbuilding companies write letters to congress saying, oh, our premiums are going to rise. In fact, in the bill, it says premiums can’t rise, insurance companies can’t raise it because the federal government is basically filling the gap and paying for these claims, but yet, employers are still being told that their premiums are going to rise.

 

Judson Pierce:  Well, do they have to pay premiums if it’s a Federal Act?

 

Amy Peters:  No. Our Federal Employee Compensation Act, no. Well, actually, I shouldn’t say that. The actual agencies do fund or foot the bill for workers comp. It is a line item in their budget, which is the reason why whenever we talk about postal reform, we always talk about the Federal Compensation Act.

 

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But in longshore cases specifically remember these are private employers who have private insurance companies or self-fund their workers compensation systems, and so these employers do have an interest in premiums that they’re being charged by insurance companies.

 

Judson Pierce:  Last question. This is a very unusual year and you have been practicing through this and I laud you for that. I applaud you for that, protecting your clients interests during this time. What would you like to see happen over the next six months? We have seen such a hard year. What would you like to see going forward not only in Washington, but for the country to have the division and the lack of progress in congress sort of come to an end and see more bipartisanship?

 

Amy Peters:  I’d really like to see a recognition not just with words but with actions of the important role that workers are facing and actually going to work and doing these essential jobs. If our congress and each of the state legislatures could really stand behind these workers not just by saying, hey, wonderful, our essential workers are there for us, but actually show these workers if you get sick, we’re going to be there for you. That needs to happen because every single one of these workers put themselves at risk by going to work. For example, I’m sitting in my home still and I can do that because I’ve got one of these jobs that allows me to work from home but it’s those essential workers who can’t work from home that are protecting me and allowing me to keep my family safe, but they do that by putting themselves at risk and so we all need to stand by those workers who are putting themselves at risk.

 

Judson Pierce:  Now more than ever. I echo you on that and thank you so much for being a guest to this program and a friend to WILG and injured workers all over the state and the country. You know, when I first met you some years ago, I was like, wow, this is someone I want to get to know. Your passion is evident and your knowledge base is really strong. So, thank you, Amy, so much Bluewater Legal in Washington and I can’t wait to get to a Mariners game next year and hopefully enjoy one in person with you.

 

Amy Peters:  We’d love to have you up here and thank you so much. That’s very kind.

 

Judson Pierce:  Mariners, Red Sox game. That would be that’d be a lot of fun.

Amy Peters:  It would be fun.

 

Judson Pierce:  Well, stay safe, stay healthy. I’d like to thank our special guest, Attorney Amy Peters for joining us. For those of you listening, please tune in to our next show featuring attorneys Tom Holder and Bruce Maxwell where we’ll go into the discussion of airline cases and go out there and make it a day that matters. Stay safe everyone from Salem, Mass, this is Jud Pierce Workers Comp Matters.

 

Outro:  Thanks for listening to Workers Comp Matters today on the Legal Talk Network hosted by Attorney Alan S. Pierce where we try to make a difference in workers comp legal cases for people injured at work. Be sure to listen to other Workers Comp Matters shows on the Legal Talk Network. Your only choice for legal talk.

 

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