Action Alert—Don’t Let Them Stack the Deck Against You in Workers’ Comp. Cases

Date: February 28, 2022

So-called “Loser-Pays” scheme in appeals cases harmful for small businesses. Members urged to act now.

Senate Bill 5801 would stack the deck against small businesses in workers’ compensation appeals cases.

Small businesses are at a substantial disadvantage when appealing workers’ compensation decisions, both within the department of Labor & Industries (L&I) and at the Board of Industrial Insurance Appeals.

Sometimes the only opportunity at a fair hearing in these cases is before a judge and jury. But SB 5801 would require small employers to reimburse workers for their court costs and legal fees if the employer appeals a workers’ comp decision to a court and loses any part of that appeal—even if you win four of five issues on appeal, you’d still have to pay your opponent’s costs.

L&I estimates workers’ court costs and attorney fees average $21,000 in these appeals. That’s $21,000 in addition to your own legal expenses to challenge a bad workers’ comp claim through L&I’s internal process and before the Board of Industrial Insurance Appeals, and then to superior court. Those costs would certainly increase if you’re forced to go to the Court of Appeals or the state Supreme Court.

That huge added expense could bar the courthouse door for small employers, denying them access to justice in these types of appeals.

NFIB offered an amendment to shift these costs solely to the employer-paid workers’ comp Accident Fund. The House labor committee rejected that amendment. NFIB has requested the amendment be reconsidered if the bill comes to a vote in the House.

On average, only about two dozen of these appeals are filed each year, at a total cost to the State Fund of about $500,000 annually – out of a $2 BILLION system.

Take action now to protect your ability to appeal L&I decisions to an impartial court.

Take Action Here.

Ask your state representative to consider NFIB’s amendment, which would cover the cost of these few appeals each year out of the employer-paid Accident Fund. Doing so would protect small employers’ right to trial while still ensuring workers are made whole if the employer loses any part of the appeal. It is a fair and inexpensive approach that’s good for employers and workers.

Without the NFIB amendment, ask your state representative to please vote NO on SB 5801.

Don’t forget to customize your message. Have you been impacted by an appeal? How might this change your outcome?

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