Raleigh Report – April 19, 2011

Workers’ Comp Attacked by New Bill

H 709/S 544, misnamed Protect and Put NC Back to Work, would mount a serious challenge to the state’s Workers’ Compensation program.

First, the basics about workers’ comp. It is an insurance program covering workplace injuries and occupational diseases. North Carolina requires employers to buy coverage through insurance companies or develop a self-insured program, but, in return, employers are immune from liability when an employer’s negligence causes the injury. So the program guarantees injured workers payment of their medical bills plus disability payments in lieu of wages while they recuperate (unless the claim is successfully challenged by the employer). Payment for lost wages is 2/3 of what they were making, up to a cap of $834/week in 2011, with no increases for cost of living. If the worker can return to employment, but at lower pay than was being earned prior to the accident, workers’ comp will provide a “wage differential payment” of 2/3 of the difference for up to 300 weeks from the date of the injury. The benefit to employers is that they escape the expense of lawsuits and what could be much higher payments in cases where their liability caused the injury. Mandatory workers’ comp has been an important part of employment for almost 100 years. Claims and enforcement in NC are under the jurisdiction of the Industrial Commission.

H 709/S 544 are unfriendly to workers on both parts of compensation: medical treatment and disability payments.

Medical Treatments. The bills would cut off payments for medical treatments after 500 weeks (from the date of injury), even if the injured worker is still in need of medical care. The only exception would be for a worker with “total and permanent disability,” defined as one with injuries resulting in 1) loss of both arms, both legs, both feet, both hands, or both eyes, 2) a spinal injury involving severe paralysis of both arms, both legs, or the trunk, 3) severe brain injury, or 4) second or third degree burns to 33% or more of the body. Anyone less severely injured would lose medical payments after 500 weeks, whether or not s/he needed more treatment. So, for example, a worker who has lost both an arm and a leg in an industrial accident would not meet the definition of total and permanent disability in H 709 and would not be able to receive a replacement prosthetic or any other medical care after 500 weeks, regardless of need. In effect, this will transfer such a worker’s medical expenses from workers’ comp insurance carriers to health insurance programs, either public or private, or to charity care. In addition, workers would be much more limited in seeing doctors of their own choosing, as opposed to those to whom they were directed by the employer or insurance carrier. Finally, workers would give up medical privacy rights because the bill would allow employers, insurance companies, and their attorneys to communicate directly with the worker’s health care providers, without the worker’s consent or even the worker’s knowledge until after the fact.

Disability Payments. Currently, a worker can receive disability payments for as long as s/he is unable to find suitable work. “Suitable work” currently means work at comparable pay to that being earned prior to the injury. H 709/S 544 would cap that compensation at 500 weeks, even if the injured worker is unable to get a job because of the injuries. The only exception would be for a totally and permanently disabled worker (see definition in previous paragraph). In addition, after reaching “maximum medical improvement” (which means pretty much what it sounds like – this is as much recovery as the worker will ever make), the worker would have to take any job the employer offered which the worker has the physical, educational, and vocational ability to do, even if it pays wages much lower than what the worker was making before the injury. So, for example, an injured firefighter who was making $50,000 can be offered a minimum wage job and have his/her wage differential payment cut off for refusing to take it. There is also no requirement that the replacement job be located near where the worker is living.

Remember, because of workers’ comp, employers are off the hook for liability for any negligence on their part which may have caused the injury, and workers have involuntarily given up their right to sue based on that negligence. Any reduction in payments to injured workers means more money kept by the insurance carriers and, especially for the companies that self-insure, more money kept in employers’ coffers.

Proponents will argue that these changes in workers’ comp will make NC a more attractive place for business, bringing in new employers and creating new jobs. But NC already IS one of the nation’s most attractive states for business. Numerous rankings over the past years have placed NC at or near the top. In 2010 we were ranked #1 for best business climate by Site Selection magazine and #1 for lowest state and local tax rates for business by the Council of State Taxation and Ernst & Young. Other top five rankings have come from CEO magazine, Forbes, CNBC, and Polina Corporate Real Estate. So the bill seems to be addressing a problem – poor business climate – that doesn’t exist.

The NC Council of Churches has long supported workers’ compensation because of the assistance it provides to injured workers, who are often in low-paying jobs and who become incredibly vulnerable because of on-the-job injuries

Even though H 709 was introduced less than two weeks ago, it’s been making the rounds of committee assignments. It was first assigned to House Commerce. Then it was withdrawn and re-referred to Insurance. Now it has been re-withdrawn and re-referred to the House Select Committee on Tort Reform, even though the whole point of workers’ comp is to handle the situation of injured workers outside of tort law. Never mind, that’s where H 709 is now, and that Committee is scheduled to meet at 11:00 this Thursday morning, April 21.

Suggested Action

  • If this bill is of concern to you and you live close to Raleigh, plan to attend Thursday’s committee meeting. (Just double-check with the House calendar on Wednesday evening.)
  • Communicate immediately with your Representative if s/he is a member of this committee. (Click here for a list of committee members.)
  • Communicate with House Speaker Thom Tillis and Governor Perdue. (Contact info at the end of this RR.)
  • Write a letter to the editor or spread the word through Facebook, Twitter, and blog sites.

Other New Bills

With the passing of the deadline for introduction of non-money legislation, there has been a flood of new bills, including the ones below. The next issue of RR will finish up the summaries of newly introduced bills and update you on the status of what’s already been introduced.

CAMPAIGN AND ELECTION LAW

S 456, Candidate List Party or Unaffiliated Status
Introducer: Sen. Goolsby
Status: Senate Judiciary I

S 456 gives candidates for a variety of non-partisan local elections the option of having their political affiliation listed on the ballot.  Also, unaffiliated candidates would have the option to list themselves as unaffiliated.

S 458, Judicial Appointment/Voter Retention

Introducers: Sens. Clodfelter and Hartsell
Status: Senate Judiciary I
S 458 is similar to H 325, which is summarized in the March 21 Raleigh Report, in calling for a different system of selecting judges. There are several differences in the two bills, including two primary ones. Under S 458, the Governor would appoint someone to fill a judicial vacancy from a list of two names provided by a 16-member Judicial Nomination Commission.  At the next general election, voters would vote on the two nominees to permanently fill the judicial vacancy.  The 16-member commission is designed to be bipartisan and to represent various parts of the legal community, from the district attorneys to the trial lawyers. (Under H 325, the Governor would appoint one person, who would later stand for election. If s/he was not affirmed, the Governor would appoint someone else, who would later stand for election.) The other significant difference between the two bills is that S 458 would include Superior Court judges in the process, while H 325 would be limited to the Court of Appeals and Supreme Court.

S 459, Repeal Matching Funds
Introducer: Sen. Brock
Status: Senate Judiciary I

S 459 would repeal the sections of NC’s public campaign finance law that provide for additional public campaign money if an opponent’s expenditures exceed a certain amount.  The bill states that it is designed to bring NC law in line with the 2008 US Supreme Court ruling Davis v. FEC.  However, there are important distinctions between the federal law considered in Davis and NC’s voluntary public financing. That federal law relaxed limitations on private contributions to a candidate if his/her opponent was wealthy and spending more than a set amount of personal funds. (It was called the “Millionaire’s Amendment.”) The challenge of S 459 is to the state’s public financing, which is voluntary, meaning that a candidate can choose not to accept public funding at all and not to be bound by the accompanying limits on fundraising. That candidate can use his/her own money or raise money from other private sources. NC’s law gives additional public funding to a participating candidate whose opponent has raised certain defined large amounts of private money. While it is possible that the current US Supreme Court would invalidate laws like NC’s, our law is different from the one in Davis.

S 502, Voting Materials in English
Introducers: Sen. Brock
Status: Senate Judiciary I

S 502 prohibits voter registration and ballot materials to be printed in any language other than English, except to the extent required by federal law.

S 503, No Second Primaries
Introduced by Sen. Davis
Status: Senate Judiciary I

S 503 prohibits candidates in a primary election from demanding a second primary, even if no one receives a substantial plurality (40% or more) of the vote in the first primary.

H 624, Citizens United Disclosures
Introducers: Reps. Harrison, Martin, Current, and Hurley
Status: House Elections

H 624 requires that any NC corporations that spend $10,000 or more on political elections during a 12-month period must first obtain approval from their shareholders.  The bill is in reaction to the US Supreme Court ruling Citizens United v. Federal Election Commission, which greatly relaxed regulations and limits on election expenditures by corporations.

H 633, Limit Contributions from Political Parties
Introducers: Reps. Current, Avila, Blust, and Harrison
Status: House Rules

H 633 would limit to role of political parties in campaign fund-raising by extending already existing  contribution limits to contributions made by candidates or their campaigns to political parties (national, state, district, or county), and contributions by parties to candidates and their campaigns.

CARE OF CREATION

H 549, Counties May Require Solid Waste Services
Introducers: Reps. Iler and Hill
Status: House Government

H 549 enables (but does not mandate) counties to require owners of improved real property to place solid waste in specified places or receptacles, separate materials before collection, participate in a recycling program, and participate in a solid waste collection service if they have previously opted out.

H 585, NC Energy Independence Search Committe
Introducers: Reps. Pridgen, Hastings, and Jones
Status: House Public Utilities

H 585 creates a three member committee whose sole mission is to seek out large energy companies and invite them to explore in NC for natural gas, oil, wind, or other energy sources capable of large scale energy production.  The committee will consist of one appointee from the Speaker of the House, one from the President Pro Tempore of the Senate, and one from the Governor. The bill originates in the House and (surprise, surprise) the chair of the search committee would be the appointee of the Speaker of the House.

H 610, Hog Lagoon Phase Out / Livestock Treatment
Introducers: Reps. Harrison and Luebke
Status: House Rules

H 610 sets up a system and timetable to phase out the use of lagoon and sprayfield waste systems to deal with hog waste.  The bill also instructs the Board of Agriculture to set up minimum humane standards for the treatment of cows, poultry and swine

CHILDREN AND FAMILIES

S 498/H 579, Modify Law Re: Corporal Punishment
Introducers: Sens. Pate and Purcell; Reps. Alexander and Johnson
Status: S 498 is before the Senate for a floor vote, H 579 is in House Rules.

S 498/H 579 permit corporal punishment to be administered to students when parents have given their written permission. Current law lets parents opt out of corporal punishment for their child; this bill changes is to an opt-in.

CRIMINAL JUSTICE

S 509, “Ban the Box”/ Public Employment
Introducers: Sens. Doug Berger and McKissick
Status; Senate Rules

S 509 bans public employers in NC from inquiring into the criminal history of an applicant until the interview stage of the application process.  The Department of Correction and other public employers required to inquire into criminal history are exempt from this bill.

GAMBLING

H 564, School Capital Fund Formula/Lottery Proceeds
Introducers: Reps. Hilton, Fisher, Keever, and Moffit
Status: House Education

H 564 changes how the state lottery money is distributed to school capital construction projects.  Formerly, 65% of the money was distributed on per-pupil basis, and 35% of the money was given to school districts whose county tax rates were highest (ostensibly to enable them to lower those high rates).  This bill directs all of the money for capital projects to be allocated on a per-pupil basis.

GUN VIOLENCE

H 582, Amend Felony Firearms Act/Increase Penalties
Introducers: Reps. Daughtry and Jordan
Status: House Judiciary Subcommittee B

H 582 expands the ban on convicted felons owning firearms to include ammunition and tasers.  Also, the bill makes it illegal for persons convicted of felonies to carry a concealed weapon, including tear gas.

H 650, Amend Various Gun Laws
Introducers: Reps. Hilton, LaRoque, Cleveland, and Hastings
Status: House Judiciary Subcommittee C

H 650 is a grab bag of provisions to weaken the state’s existing gun laws. Among them:

  • Reduce the penalty for having a gun on school grounds from felony to misdemeanor
  • Allow students or others to bring guns to school as long as the guns are locked up in a vehicle.
  • Require a showing of willful and intentional conduct to prove a violation of the law prohibiting guns at the State Capitol, Governor’s Mansion, Western Governor’s Mansion, and court buildings. Allow bringing a gun on the grounds of these places if it is locked up in a vehicle.
  • Eliminate the automatic prohibition on guns for people subject to a domestic violence protective order. The protective order would have to contain such a prohibition, and the penalty for a violation would drop from a felony to a misdemeanor.
  • Current law prohibits the possession of guns at parades, picket lines, and demonstrations at “any private health facility” or at any public place. H 650 would grant an exemption for guns that are locked in vehicles, and would also exempt anyone with a concealed handgun permit.
  • Allow those with concealed handgun permits to take their guns to restaurants, bars, other places where alcohol is served, parades, picket lines, demonstrations, and financial institutions.
  • Greatly limit the reasons for which a sheriff may deny someone a concealed handgun permit. Reasons specified under current law which would be eliminated include:

o        The person has a physical or mental condition which prevents the safe handling of a handgun.
o        The person is a fugitive from justice.
o        The person is addicted to alcohol or illegal drugs.
o        The person has been adjudicated to have a mental illness or be lacking in mental capacity.

  • Handgun permits from other states would be valid in NC, regardless of whether the other state grants similar reciprocity to NC.
  • Eliminate the authority of counties and cities to regulate the display of firearms on public property in that county or city.

HEALTH AND HEALTHCARE

H 503, Nutrition Standards/All Foods Sold At School
Introducers: Reps. Insko and LaRoque
Status: House Education

H 503 directs the State Board of Education to annually examine nutrition standards for the public schools and make sure that they are up to date with current nutritional standards.  Also, the bill extends current efforts to provide healthy food to students, which currently apply to cafeterias and vending machines, to school stores, snack bars, fund-raisers and other “informal sales” during the school day. Excluded are child nutrition and culinary programs, high school fundraisers after lunch, and extracurricular events.

S 469, Smoking Ban/Exempt Age-Restricted Venues
Introducer: Sen. East
Status: Senate Rules

S 469 exempts “age-restricted venues” from the state’s smoking ban.  Smoking could be permitted in a structurally separate room (with a separate ventilation system) where admission is limited to people 18 years of age or older. This bill would provide a substantial loophole for the smoke-free restaurants and bars bill and would expose patrons and employees of the adult-only venues to the health dangers of second-hand smoke.  Patrons, presumably, could choose to take their patronage elsewhere. Employees might not be so fortunate.

S 471, Youth Skin Cancer Prevention Act
Introducers: Sens. Purcell, Mansfield, and Forrester
Status: Senate Health Care

Currently, there are no restrictions on use of tanning beds by those over the age of 13.  S 471 would mandate that anyone under the age of 18 must have a doctor’s prescription in order to use a tanning bed.

HOUSING

S 462, Distribution of Excise Tax on Title Instruments
Introducers: Sens. Mansfield, Gunn, and Clary
Status: Senate Finance

S 462 increases the amount of money going to affordable housing by devoting 50% of revenues from the excise tax on sale of property to the NC Housing Trust Fund, which supports the provision of affordable housing to low and moderate income people.  Currently, the Housing Trust Fund has no dedicated (i.e., regular and permanent) source of money.  This would require reducing the money appropriated to the Parks and Recreation Trust Fund and the Natural Heritage Trust Fund.

MENTAL HEALTH, DEVELOPMENTAL DISABILITIES, SUBSTANCE ABUSE

S 481, Mental Health Workers’ Bill of Rights
Introducers: Sen. Jones
Status: Senate Mental Health & Youth Services

Identical to H 287. See RR, March 21.

JUVENILE JUSTICE

S 506/H 632, Juvenile Age to 18
Introducers: Sens. Hartsell, Jr., Bingham, and McKissick, Jr.; Reps. Lewis, Randleman, Avila, and Bordsen
Status: Senate Rules; House Judiciary Subcommittee B

S 506/H 632 raise the age at which one is tried as a juvenile instead of as an adult from 16 to 18 using 6-month increments over four years. Those age 16 – 18 who commit the most serious felonies would still be transferred to the adult court system.


MISCELLANEOUS

S 460, Nonprofits/Criteria to Receive State Funds
Introducer: Sen. Brock
Status: Senate Appropriations/Base Budget

Identical to H 100. See RR for February 18.

H 572, Accountability for Publicly Funded Nonprofits
Introducers: Reps. Justice, Sager, Stevens, and West
Status: House Judiciary Subcommittee A

H 572 mandates that any nonprofit corporation that receives grants or loans from the federal, state, or local government must provide a copy of their latest financial statements, including how the public money was spent, if requested in writing by a member of the public.  Also, the nonprofit must provide a copy of its most recent IRS form 990.  Providing the documents on a website would be considered compliance.

H 542, Tort Reform for Citizens and Businesses
Introducers: Reps. Rhyne, McComas, Brisson, and Crawford
Status: House Select Committee on Tort Reform

H 542 is a lengthy bill proposing a series of tort reform changes. In spite of the bill’s title, these tort reforms are mostly for businesses, not individuals. These changes include:

  • A proposal to separate issues of liability and damages, so that evidence regarding damages could not be admitted until the defendant had been found to be liable.
  • Limits on noneconomic damages to $250,000.
  • Changes in standards for emergency medical care so that a patient could not get malpractice damages unless the doctor or other provider had engaged in “gross negligence, wanton conduct, or intentional wrongdoing.”
  • Changes in punitive damages (awarded when the conduct of the defendant is found to be particularly egregious) of more than $100,000. Those amounts over $100,000 would be divided up, with 25% going to the plaintiff who was injured and 75% going to the state’s Civil Penalty and Forfeiture Fund, which helps fund public education.
  • If a plaintiff is awarded future economic damages, the judge can let the defendant pay over a period of years instead of in one lump sum.
  • Manufacturers or sellers of products that are subject to government regulation cannot be held liable in a product liability suit if the product was in compliance with those regulations.

H 587, NC Jobs Bill
Introducers: Reps. Bradley, Warren, Torbett, and Hastings
Status: House Commerce and Job Development

In spite of its title, H 587 is actually a bill limiting state regulatory protections, as its long title states. (General Assembly rules require the long title – or caption – to accurately reflect the bill’s content. There’s no similar requirement for the short title.) H 587 would do the following:

  • prohibit state agencies from creating standards that exceed federal regulations without a specific act of the General Assembly.
  • require a cost-benefit analysis of any new significant rule change.
  • give the Office of State Budget and Management veto authority over any new rule if the costs outweigh the benefits, and the bill specifies that this applies if “any reasonable scenario yields costs that exceed benefits.”
  • require review within six months of all rules in existence at the time of the passage of this bill to determine if they need to be amended to “minimize the economic impact of the rules.” (Of course, there’s no requirement that they be evaluated to see if they are adequately protecting the public.)
  • require annual review of all new rules in order to justify their existence.
  • create provisions to protect “small” businesses, requiring the rejection of any rule for which “reasonable steps” have not been taken to lessen the impact on small businesses. Small businesses are defined as any entity with either less than $6 million in revenue or fewer than 500 employees.

S 510/H 608, Honor B Holt
Introducers: Sens. Kinnaird and Blue; Reps. Bordsen, Alexander, Ingle, and Hackney
Status: Senate and House Rules Comms.

S 510/H 608 honor the life, service, and memory of Bertha “B” Holt, long-time member of the House. B was a past recipient of the Council’s Faith Active in Public Life Award and was a member of our Governing Board at the time of her passing shortly after our 75th Anniversary celebration last May.

Contacting your State Legislators

By telephone:  All legislative offices can be reached through the legislative switchboard – (919) 733-4111.

By e-mail:  Legislative e-mail addresses follow the pattern of <first name dot last name@ncleg.net>.  (Example: Speaker Thom Tillis’ address is Thom.Tillis@ncleg.net.)  If you have any question about the spelling of your legislator’s name or whether your legislator’s e-mail address uses a nickname, you can confirm addresses at the General Assembly’s web site: www.ncleg.net. Click on “House” or “Senate” and look for Member Lists.

By postal service mail:  All legislators can be addressed at: North Carolina General Assembly, Raleigh, NC 27601-1096.

To find out who your legislators are, go to the General Assembly’s web site: www.ncleg.net. Look for “Who Represents Me?” near the top of the homepage. You will find a variety of ways to search, including through your nine-digit ZIP Code. (And there’s a link to the Postal Service if you don’t know yours.) For those without Internet access, local Boards of Elections can be asked for assistance.

Contacting the Governor

By phone:         (919) 733-4240

By Fax:             (919) 733-2120

By mail:

Governor Bev Perdue
Office of the Governor
20301 Mail Service Center
Raleigh, NC 27699-0301

By e-mail:         governor.office@nc.gov

Rose Gurkin, Program Associate for Administration Rose Gurkin, Program Associate for Administration

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