Two sessions on opt out at the National Workers' Compensation and Disability Conference this month showed this movement is at a crossroads. The advocates can decide whether their idea is a serious advance in injury risk management at a time ripe for change or an elaborate ruse to shed social responsibility.

Since the first attempt to expand outside Texas, in 2012, the advocates have had plenty of opportunity to show their stuff. I wrote an in-depth study about opt out, which I have all along viewed as a compelling alternative to our current sclerotic century-old system.

I still hold the same view, but boy, did I come away disheartened. The disclosures of actual opt-out plans by Pro Publica and the presentations in Las Vegas can lead one to view the movement as inured to Texas-style secrecy, coercion and sticking the bill to workers and public relief.

Its leadership appears to feel comfortable only in very conservative state capitols. That’s why I think it avoids Maine, the state with a clean opt-out law already, because it would likely be shown the door by the Insurance Commissioner, based on what we know now.

Texas lawyers dominated in Las Vegas. Employer advocates would not so easily ignore troubling facts about opt-out ERISA plans. Behind the law and bureaucracy of workers’ comp is an unwritten piece of wisdom: Do not demand of an injured worker anything you would not want someone to demand of a family member.

Let’s start with the hard to read opt-out plans. Workers’ comp benefits are complicated, so state agencies and others publish simplified guides. For opt out in Texas, each employer distributes a unique document upwards of 50 pages. Because the advocates have thwarted public filing of plans, there is no way for a third party to create simple guides. I have two degrees from Harvard and I have a hard time absorbing them.

Many opt-out plans require a person to report her or his injury immediately or lose access to benefits. Whether or not this provision has any merit in the overall functioning of a work injury benefit system is a researchable question.

As of now, the idea that strict 24-hour reporting of injuries is good for medical care, benefit administration and the worker is a myth. The closer one looks at the draconian provision, the more it becomes evident that it may violate not only the standards of ERISA (see Heimeshoff v. Hartford Life and Accident Insurance Company, 2013) but also the “interactive process” standard of federal disability law. With the continued failure of opt-out advocates to explain informatively the merits of the provision, the real purpose emerges: a capricious rule intended to cow the worker.

The Association of Responsible Alternatives to Workers’ Compensation could study this 24-hour reporting rule any time it wants.

Some plans have limits on weekly wage-replacement benefits so low as to suggest the plan designers want to deter high-wage earners from filing claims. We know this only because Pro Publica overcame the obsessive secrecy of the movement’s leaders by releasing many plans.

Walmart’s benefit plan warns the injured worker that if she sees her or his own doctor to discuss the injury, the company may terminate all injury benefits. Re-read that previous sentence to let it sink in. PartnerSource wrote the Walmart plan. This provision conflicts with how people can best make informed medical decisions.  

Many plans have global dollar caps on benefits. The failed Tennessee law of 2015 would have written them into statute. Because of exclusions by health plans, in order for the capped out worker to get care from her health plan, she would have to convince the plan that her work condition was not in retrospect caused by work.

The movement has grown in the absence of informed debate. PartnerSource and other advocates cripple discussion by fighting public filing requirements. How public filing harms an employer is unclear. It isn’t as if a benefit plan is a meaningful trade secret, such as an employer’s compensation policies.

The progressive side in Texas never launched a serious, fact-filled challenge to opt out, and will not put itself out for the benefit of critics in other states. Newspapers occasionally run stories that leave little wake. The weak state of criticism of opt out shows when the Las Vegas conference planners had to rely on Trey Gillespie, of the Property Casualty Insurance Association of America, to present an opposing view to Bill Minick of PartnerSource. (Note the absence of employers.) Gillespie gives a spirited performance but is a stand-in for someone not yet found who can more systematically critique the concept.

The dominance of lawyers hampers the debate. The defense bar must know that work injury is a societal problem needing a societal solution, which can (and I think should) involve a lot more employer discretion. But when they get onto a panel, they are tacticians hired for combat. The claimant bar is wont to focus on state constitutional issues that are hard to generalize from. Missing is the thoughtful employer’s voice.

Questions to the Association of Responsible Alternatives to Workers’ Compensation: Can opt out be right for the worker as well as the employer?  How will you show that?