Vol. 32, No. 3, 3. Changes Leave Room for Improvement: The 2009 Workers' Compensation Legislation.

• Author: By George Santini

Wyoming Bar Journal

2009.

Vol. 32, No. 3, 3.

Changes Leave Room for Improvement: The 2009 Workers' Compensation Legislation

Wyoming LawyerIssue: June, 2009Changes Leave Room for Improvement: The 2009 Workers Compensation Legislation By George Santini The first Wyoming Workers' Compensation Act was enacted by our Legislature in 1915. A constitutional amendment authorizing the creation of a workers' compensation fund passed overwhelmingly during the 1914 general election. That amendment to Article 10, Section 4 of the Wyoming Constitution authorized the creation and maintenance of a fund for payment of compensation to injured workers or the families of deceased workers in lieu of their common-law rights of action against the employers in the event of work-related injuries or death.

In the 94 years since its enactment, the Wyoming Workers' Compensation Act has undergone a multitude of changes. The fund, which initially had a balance of a few hundred thousand dollars, has grown to more than $1 billion. Throughout the course of its history, there have been some predominant themes and conflicting interests at play - the most prominent of these being the dynamic tension between the desire of injured workers to maintain benefits at as high a level as possible and the conflicting interest of the employers in keeping premium rates as low as possible. Over time these conflicting interests have been the focal point of numerous legislative battles.

The most recent of these battles occurred during the 2009 General Session of the Wyoming Legislature and culminated in the passage of House Enrolled Act No. 92 (HEA92). Passage of this bill was particularly notable as it marked the first time employee benefits had been significantly increased in more than 20 years. The 2009 bill provides a stark contrast to the 1994 Workers' Compensation Reform Act, which lifted the legislative ceiling on employer premium rates at the cost of greatly reducing permanent disability benefits and the imposition of significant procedural hurdles for injured workers to overcome if they sought to collect benefits.

Though, in my opinion, the 2009 legislation represents a step in the right direction, employee benefits are still substantially lower than the benefits available under the pre-1994 act. The 2009 workers' compensation bill reflects the ongoing tension between providing higher benefits and maintaining low employer premiums. The trade-off for increased benefits in the 2009 bill was a provision allowing the Wyoming Workers' Safety and Compensation Division to grant premium credits across the board to all employers who had paid premiums in the prior year and whose accounts were current. This premium credit is totally discretionary with the Division and theoretically would allow the reimbursement of any excess amounts in the fund after payment of costs and reserves back to employers. The practical effect of which would be there will be no surplus in the fund to pay for future benefit increases and any enhancement of benefits would directly raise employer premium rates.

The benefit modifications which were provided for under HEA92 focused primarily on increasing benefits paid to surviving spouses and dependent children, increasing the number of months upon which permanent physical impairment benefits are calculated and, for the first time, providing a cost of living adjustment in some permanent disability benefits. Additional provisions regarding the sharing of costs and attorneys' fees in the event of third-party recoveries and expansion of elective coverage to include partnerships and sole proprietorships...