I recently attended a program at which Professor John Burton spoke regarding his service on the 1972 National Commission on Workers' Compensation. He recounted how that commission met 11 times, over 32 days. The end result was the formulation of 19 essential recommendations. He noted that these recommendations were not followed by the States, and that by 2004 the U.S. Department of Labor stopped even tracking State progress with the 1972 Commission recommendations.

Professor Burton discussed the 2009 attempt at formation of another national commission. He concluded that the membership requirements in the proposed bill by Representative Baca were so complex that it is unlikely any such group of people could have been assembled, even if the bill had passed. He expressed doubt that any such "modern" commission could effectively address the issues that face workers' compensation. His support for this seems to be his conclusion that politics has become too partisan today. As proposed in the bill, he concluded "the 2009 national commission" appointment process "virtually guaranteed that the deliberations of the commission will be divisive and the report splintered.”

That said, Professor Burton proposed four areas in which he believes there is room for a national debate in workers' compensation. He suggests that there are organizations already postured to play a meaningful role in these four topic areas. He said "the best way to improve workers' compensation in the 21st Century is to choose narrow topics for which solutions are not immediately obvious and for which the solutions have considerable potential to be beneficial to most if not all parties in the workers' compensation system."

First, he suggested revisiting the determination of permanent disability. After defining the differences between work disability and limitations on activities of daily living (non-work disabilities), he concluded that this subject should be studied by physicians, rehabilitation professionals, nursing professionals and economists. He explained that there are a multitude of issues that should be addressed, including causal relationship of injury, the extent of work disability, the determination of what "constitutes an adequate" compensation and how an appropriate disability guide might be developed and implemented. He noted that the American Medical Association guides, used by many states, are misused. Another criticism he notes is that the AMA guides are not based upon evidence, but are "largely based on consensus among physicians." Professor Burton suggested that the Institute of Medicine would be a sound body to undertake this project. In some part, his faith is based upon the IOM efforts regarding determination of disability for veterans.

Second, he suggests, there should be an examination of the dichotomy in medical care provision when work versus non-work maladies are involved. He notes that physician choice is one area in which there is a great difference. The injured worker may have her or his work injury care directed by the employer or their carrier in some jurisdictions. However, the same employee suffering a personal injury may be free (or freer) to chose their own physician. He posits that "an examination of these and other issues pertaining to the worker's compensation health care system should produce evidence and recommendations that are beneficial to most participants in the workers' compensation program. He likewise suggests that the institute is the appropriate organization for this debate/challenge.

Third, Professor Burton notes that tests for compensability have become less straightforward in the years since workers' compensation was conceived. He also argues that many states have "adopted legal tests for compensability that are based on outdated medical knowledge." He says that the result of such tests is a finding of compensability when "there is no scientific basis for that conclusion." He posits that simplification of the tests might be in order, and that it may be time for a new publicly funded "disability program that provides" benefits "regardless of the cause" of the injury. He proposes that the National Academy of Social Insurance may be best situated and prepared to undertake a meaningful study of these and other compensability issues.

Fourth, he notes that the recommendations of the 1972 Commission have not been widely implemented. He believes that "the primary obstacle to state reform was competition among states for employers and the fear that an adequate workers' compensation program in a state would drive employers to a less expensive jurisdiction. He notes that data from the National Council on Compensation Insurance seems to support statutory benefits decreased in the 1990s and 2000s. He labels this a "race to the bottom" regarding benefits and thereby workers' compensation costs. He argues that states appear to be engaged in such a race, and that the only cure for this is "a viable threat of federal intervention to counter the alms race." That said, he does not support such a federalization plan.

In all, the presentation and written materials provided a stimulating discussion from a variety of perspectives.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column was reprinted with his permission from his Florida Workers' Comp Adjudication blog.