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WORKERS COMPENSATION, FEDERALISM, - page 26 / 43

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improve the system have been vigorously assailed and strongly resisted as precursors to a Federal ‘take-over’ of the system .... Given the entrenched power of the defenders of the status quo,” he concluded, minor gains were all that could be expected (Noble 1986: 88-89).

The outcome was virtually identical to that for disability insurance. Although there was a constituency for reform and evidence of poor performance, existing stakeholders proved too formidable. If policy makers wanted to pass a meaningful bill, they had to shorten the list of enemies and accept workers’ compensation in its present, flawed form.

One of those “minor gains” in the OSH Act was creation of a National Commission on State Workmen’s Compensation Laws. Admittedly, the creation of such commissions is frequently symbolic politics at its worst, giving the appearance of official activity but ultimately changing nothing. Every once in a while, such commissions give elected officials the ideas and political cover needed to address difficult issues; the recent military base-closing commission is a good case in point. At a minimum, commissions need to have a clearly-defined topic, adequate technical support, and a wide range of views represented among their members if they are to have any tangible impact on policy.29 The National Commission seemed to qualify on all counts, and was later credited with a number of improvements in states’ compensation programs during the 1970s. None of these improvements, however, entailed fundamental changes to state-level control.

The Commission’s final report (1972) and three volumes of supplemental studies formed arguably the most thorough indictment of workers’ compensation in the 20 century.30 They faulted state laws for failing to cover the entire workforce, provide adequate cash benefits, provide adequate and timely medical benefits, help rehabilitate injured workers, promote safety on the job, and keep administrative and legal costs in line. The final report identified 19 “essential elements” of a good workers’ compensation program. On average, state programs possessed only seven of the 19 elements, and many states had fewer than five. The Report estimated the cost to comply with these elements by 1975 would be minimal in a few states (less than a ten percent increase in Arizona, Connecticut, Hawaii, Maine, and Washington), and substantial in many others (between a 30 and 40 percent increase in, e.g., Colorado, Florida, North Carolina, and Pennsylvania). In 14 states, largely but not exclusively from the South, total compliance would entail a 40- 60 percent increase in current spending for workers’ compensation. th

Given the Commission’s detailed catalog of deficiencies in states’ programs and its willingness to promote sweeping change, why was state-level control deliberately retained? One explanation points to time constraints. President Nixon did not appoint Commission members until mid-June 1971, and by law they had until the end of July 1972 to produce a final report. Members simply lacked the time to discuss every issue, and greater national involvement and the merits of public versus private insurance funds were among those

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