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Michael Duff

Labor Lawyer, Professor, Workers’ Compensation Data Panel Member

Workers’ Compensation (WC), which is regulated by states and has no federal funding, is unlike other U.S. social insurance programs such as Social Security and Medicare. Although all businesses—with a small number of exceptions—are required to purchase workers’ compensation coverage for their employees, benefits vary widely from state to state. From 1946 to 1995, the Social Security Administration (SSA) published a report on workers’ compensation benefits, costs, and coverage within each state. When SSA discontinued their annual report, the National Academy of Social Insurance assumed the task, producing an annual report on Workers’ Compensation: Benefits, Costs, and Coverage since 1997.

Michael Duff, Professor of Law at the University of Wyoming College of Law, recently joined the Academy’s Study Panel on Workers’ Compensation Data, which is comprised of 23 experts who guide the production of the annual WC Report. He spoke with us about the WC Report and its relevance to employers and employees.

Q: How did you become interested in Workers’ Compensation (WC)?

Duff: Workers' Compensation is an invisible system that is much more important to people than they tend to realize. Before I went to law school, I was a blue-collar worker in the airline industry and a Teamsters’ Union shop steward. I saw people get injured in the workplace and have entanglements with the Workers’ Comp system. Workplace injuries are ubiquitous, people are facing them all the time, they just don’t realize it.

I should add I have a personal stake in this area. My grandfather was a coal miner who died of black lung at 52. It’s one of the things that keeps me engaged with issues of workplace injury and disease.

Q: What makes the Academy’s WC Report valuable?

Duff: I’m a labor relations lawyer, I’ve practiced workers' compensation, and I’ve written a workers’ comp textbook that I use in my course. But I discovered that whenever I wanted to make comparisons between state systems, a lot of the information was only available for purchase. I had a difficult time assembling truly public information.

Whenever you purchase information, you have to wonder if you can trust it. You have to understand the collection procedures of the private entity. In addition, there’s always the possibility of bias, whether conscious or unconscious. Is there a filter being used in the process of collecting the information?

Thanks to contacts within state legislatives bodies and administrative bodies, the Academy has a wealth of experience in terms of where to collect the data. As a researcher, if I didn’t have this WC Report by the Academy, and I didn’t want to pay the costs associated with collecting the data, I might eventually stumble on to some of the data. But it would be a much more inefficient process. That alone makes it valuable; but in addition, the Report is publically available, so it’s easily accessible to everyone. And because of the non-partisan, non-profit nature of the information collecting, it’s pretty reliable compared to other sources of information that one might consult.

Q:  Who finds the WC Report useful?

Duff: Anyone attempting to gain an overview of the system will be a natural user. For instance, state legislators wrestling with complicated questions of policy might appreciate direct access to the information. Say a state wants to set benefit levels. Are their proposed levels too high or too low? They can go to this kind of comparative data set and make some informed policy choices. Academics use it to compare the performance of various state workers’ compensation systems. It’s very useful for those types of researchers.

Q: Is there anything newsworthy in the WC Report?

Duff:  On one hand, the value of the WC Report is how it stays the same from year to year. Maintaining a tight fidelity to the structure of the Report allows us to make accurate and reliable comparisons, because the information is collected and presented in as similar a fashion as possible. The Report can provide snapshot comparisons between years.

As we get deeper into the data, the Data Panel will be noticing trends and that’s what we will be discussing at the upcoming panel meeting in November. We see, for instance, that employer costs continue to go down and employee coverage has gone up. We don’t make recommendations; legislators make their own determinations based on the implications of what the data show.

However, I think Workers’ Compensation is likely to become newsworthy in 2020 as we wrestle more broadly with issues of health care policy. When Workers’ Comp was first adopted by states, it had very limited medical benefits, which expanded over time. Our health care system has always stood uncomfortably next to the employee health benefit system that exists simultaneously with the Workers’ Comp system. As we start to think about changes to our national health care generally, and specifically to employer provided health care, it’s going to be critical to know very granular information about what benefits Workers’ Comp actually delivers so policymakers understand the impact between systems.

Policy makers need to know the history of Workers’ Comp, its original mission, what benefits it delivers, how changes in overall policy would affect workers, and what we would do if there are some unintended consequences. I think it’s going to be an exciting—and possibly scary—time. 

 

More about Michael Duff

Michael C. Duff is a Vice Chair of the Workers’ Compensation Committee of the American Bar Association’s Tort Trial and Insurance Practice Section. He has written extensively on various complex labor and employment matters, most recently on preemption issues emerging from the interplay of Title I of the federal Employee Retirement Income Security Act (ERISA) and state workers’ compensation systems.

Previously, Professor Duff spent nearly a decade working as an attorney, adjudicative official, and investigator in various National Labor Relations Board offices. Professor Duff has a J.D. degree from Harvard Law School. He has been a member of the National Academy of Social Insurance since 2017.