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Cost Shifting: Worker's Compensation Dirty Little Secret

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Today I taught worker's compensation "Offsets" in the course I teach at Marquette Law School. The students were aghast at the amount of "cost shifting" that occurs in worker's compensation: that is, medical costs paid by a variety of sources other than worker's compensation for medical expenses that should be paid by the worker's compensation insurer.

We all pay an additional price for medical costs borne by group health insurance carriers, Medicaid, and Medicare that should in fact be paid by worker's compensation insurers. This "cost shifting" occurs in two significant ways. First, if the claim is denied by the worker's compensation insurance carrier, medical costs may be paid by the worker's group health insurance or other private insurance company, or through State Medicaid or federal Medicare programs (the cost of which we all pay in taxes). When those claims are settled, the worker's compensation insurer routinely saves money by reduced negotiated payment contracts with medical providers, between the provider and the group health carrier, Medicare, or Medicaid (rather than the "full boat" payments that should be paid by the worker's compensation insurer). If the treatment is deemed work-related after a hearing, the worker's compensation insurer will pay the other insurer, but at reduced rates.

Second, since only about one in ten cases involves any kind of litigation, workers who are not represented routinely bill their group or other insurance carrier for medical treatment that should be paid by worker's compensation. Bolstering this notion is a recent article in theInsurance Journal. In the article Jonathan Gruber, Professor of Economics at M.I.T. was quoted indicating that worker's compensation carriers should see fewer claims as a result of more Americans obtaining health insurance under the Affordable Care Act. He said "As more people have health insurance there is less need for them to have injuries covered by worker's compensation and this should lower worker's compensation costs." Nowhere in this analysis is the notion that the appropriate payor for a worker's compensation injury should be a worker's compensation insurer, not health insurance premiums (which are shared by us all) nor Medicare and Medicaid (again shared by us all in the form of taxes).

Workers hurt on the job should have their medical treatment paid by the worker's compensation insurer, who has received a premium for that risk from the worker's employer. Cost shifting may increase worker's compensation profits, but it hurts both the employers' and the employees' bottom line.

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