Chuck Davoli Discusses the Impact of the ACA on Workers’ Comp at OWC Educational Conference

Chuck Davoli, immediate past-President of Workers’ Injury Law and Advocacy Group (WILG) and local claimant attorney, discussed the potential effects of the Affordable Care Act on the workers’ compensation industry at the fifth annual OWC educational conference.

Davoli began by acknowledging that everything is speculative at this point in time, especially in light of the potential political challenges from the 114th Congress. However, he stated that, “Everything here is a question mark, but I think the Affordable Care Act is here to stay in some form or another.”

In particular, Davoli focused on the disparities between the care an injured worker can receive from the two available compulsory sources under the current law, health insurance or workers’ comp. “We’ve got fee schedules in health and fee schedules in workers’ comp, so how are these two going to be reconciled?” Davoli asked. In addition, he noted that access to care could become an issue for the injured worker in question, which would create a cost-shifting situation. “What we’re seeing now [in Louisiana] and especially in rural areas is that some doctors do workers’ comp and other doctors won’t touch workers’ comp…it’s the same thing with Medicare and Medicaid  patients.”

Davoli called the new law’s “most critical factor” the fact that insurers can no longer deny coverage due to preexisting conditions, thus, the importance of the MSA, especially for those patients that go on to choose a Medicare Part C or D plan aside from the usual A/B. “There is some cost-shifting going on to keep Medicare solvent and protect taxpayer dollars,” he explained.

According to Davoli, this is especially true for those injured workers who suffer from co-morbidities. “How do those factors affect this? Especially with regards to employee wellness programs, that’s a potential positive side.”

On the negative side, Davoli mentioned the “supply and demand” issue with primary care physicians, which he noted could create a rise for alternative forms of primary care, like telemedicine or the increased use of physician assistants and nurse practitioners.

Davoli also took the opportunity to discuss the issues with “opt-out” provisions, like the law of the land in our neighboring states, Texas and Oklahoma. “There are half a million workers in Texas right now that are not covered by either workers’ comp or health insurance,” he said. “The West, Texas fertilizer plant, the Ebola hospital – those are non-subscriber employers and what that means is cost-shifting.”

Davoli also mentioned several court cases, including Duck v. Morgan Tire out of Oklahoma, in which the judge allowed the claimant to sue in tort because the accident was “foreseeable,” as a potential issue for the system as a whole going forward. “I expect to see constitutional challenges in the coming years. These cases undermine the notion of exclusivity at the base of the system.”

Davoli referenced the Padgett case in Florida as well, noting that, “The potential to fall back into a fault based system is very real. By the close of this decade we’re going to see some significant changes in workers’ comp that will make it look very different in the next hundred years…and this opt-out movement really plays into the integration of the Affordable Care Act and workers’ comp.”

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