The Iowa House has already approved and the Senate will consider today the most sweeping changes to our workers' compensation system in decades. The legislation would disadvantage injured workers in many ways. Three points in the initial Republican proposal have drawn the most intense criticism from employee advocates who spoke to journalists, published commentaries, testified at a public hearing, or reached out directly to state lawmakers:
• Shifting the burden of proof by forcing employees filing a claim to show workplace activity was the "predominant" factor in an injury;
• Cutting off benefits for most injuries at age 67, which would discriminate against older workers; and
Those provisions were so widely acknowledged to be unjust that Republicans amended them before passing House File 518. GOP State Senator Charles Schneider has said he and other colleagues favor changing the same three sections of the Senate version.
How did such cruel ideas come before the legislature to begin with? Hoping to find out, I turned to State Representative Peter Cownie, who introduced the workers' compensation bill in his capacity as House Commerce Committee chair.
Legislation that would "make Iowa's system inherently unfair and biased against the injured worker," according to a doctor who sees cases on both sides, was supposed to be on Governor Terry Branstad's desk by now. Cownie and Senate Commerce Committee Chair Bill Anderson introduced companion bills (House Study Bill 169 and Senate Study Bill 1170) at the end of February, shortly before the legislature's first "funnel" deadline. Both bills made it through their respective committees in days. Opponents urged constituents to contact lawmakers amid rumors the workers' compensation proposal was on the same fast track as the collective bargaining law approved in February.
House leaders delayed consideration of the bill (renamed House File 518) for a week. To win over reluctant members of his own caucus, floor manager Gary Carlson agreed to take out the "predominant" language and the age cutoff for benefits, then offered a broader amendment, which also altered the shoulder injury section. Bleeding Heartland discussed those changes in more detail here. Republicans approved the bill on a mostly party-line vote on March 16.
Two days later, Cownie appeared alongside Senator Schneider and House Majority Leader Chris Hagenow at a West Des Moines legislative forum. He discussed the workers' compensation bill while answering a question from his 2016 Democratic challenger Claire Celsi, who asserted that Republicans didn't campaign on the policies they have been pushing through the legislature. My transcript of those remarks, which you can watch on Christen Bain's video starting around the 27:45 mark:
Cownie: Well, let's talk about workers' compensation in Iowa. This law was created by the legislature over 100 years ago. And to say anyone didn't run on regulatory reform is untrue. That anyone who ran on making a more efficient business climate is untrue.
Let's see, a couple things in the workers' compensation bill. Right now in Iowa there's been great abuse in our workers' compensation system. I've spoken to folks on both--[Woman interrupts from audience: I'd like some numbers on that.]
Right now, the way the law reads, you can get workers' compensation benefits and unemployment-- [Woman interrupts again: I don't care about the law, tell me about the abuse of the system. Man counters: Will you let him finish answering the question, please.]
You can receive workers' compensation benefits while you're receiving unemployment insurance. You know, if you're getting workers' compensation, that means that you are hurt at work and you can't work. If you're getting unemployment insurance, that means you're supposed to be looking for a job.
You know, these aren't easy things to do. They're difficult, but that's an abuse of the system. That's an abuse of the taxpayer.
We've had examples of clear abuse where a company might have an entity in Iowa and a bordering state, and an Iowan who works in another state and got hurt in that state filed a workers' comp claim in Iowa because it's considered to be more friendly litigation in Iowa. That's a clear abuse of the system. We have plenty of data, in terms of the Oregon analysis, we've gone from the sixth-best workers' compensation rates to middle-of-the-pack 24th in ten years.
So, you know, there's no--everyone believes, I've never seen one bill in nine years down there to eliminate the workers' compensation system. This is a good thing, and we want people who get hurt at work to be taken care of. I absolutely believe that. Workers are the backbone of industry, of our economy. But if there is abuse to the system, it's the legislature's job to look at those abuses, and I believe we've done that. And the bill passed on Thursday [March 16] and goes to the Senate.
Cownie made the same points about alleged abuses while answering questions during the House floor debate; you can see those comments starting around the 11:26:00 mark of this video. Iowa already has a system for collecting overpaid unemployment benefits in the event of the double-dipping Cownie decries. Lawmakers could resolve minor issues, like precluding claims for injuries occurring in another state, without passing the "dramatic" and "far-reaching" changes Cownie proposed.
The "Oregon analysis" is the highly-regarded Oregon’s Workers’ Compensation Rate Ranking Study. Many Republicans have used the same talking point: Iowa needs to reform the system because our rates are no longer among the lowest in the nation. Kevin Hardy and Brianne Pfannenstiel showed in this Des Moines Register story that Iowa has experienced "no large increases in premium costs, claims or medical costs associated with workplace injuries." Costs for employers are not "out of control." Our ranking changed because so many other states "have reduced workers' comp benefits or made it more difficult to qualify for them," creating a situation Republican economist John Burton described as "a race to the bottom." Click here for more charts on Iowa's relatively low and stable workers' compensation costs.
Cownie's claim that "we want people who get hurt at work to be taken care of" is at odds with language he endorsed, which would have made many Iowans ineligible for compensation or cut off their benefits at an arbitrary age. Even the amended bill provides far less generous benefits than the current system for workers disabled by a shoulder injury. Democratic State Representative Jerry Kearns spelled that out during an exchange with Cownie on the House floor.
The workers' compensation bill came up at another point during the March 18 forum, when an audience member asked about the American Legislative Exchange Council's influence on the Republican agenda. Cownie said that while "who's pulling the strings" has been a "very vocal narrative" this year, "I can speak to bills that I'm working on and myself personally, I've never been to one of these ALEC meetings," or to any meetings of the Council of State Governments or the National Conference of State Legislatures. "None of those representatives of those [groups] have spoken to me once about any bill this year," he added. Majority Leader Hagenow then noted that the current state chair for ALEC, Representative Rob Taylor, voted against the workers' compensation bill.
After the forum wrapped up, I tried to get Cownie to reveal who proposed some of the worst provisions in a bill that came out under his name. Here's the audio clip and my transcript.
Bleeding Heartland: Will you take a few more questions about workers' comp?
BH: I'm Laurie Belin, I write the Bleeding Heartland blog. I want to know specifically: you talked about who's pulling the strings. Because your bill, I want to know who recommended the language on changing the "predominant" cause--
Cownie: Did you look it up to see who supports the bill?
BH: It's your bill. I saw who supports the bill. Who specifically recommended the language?
Cownie: That's not in the final bill.
BH: OK, you put your name on a bill. I want to know, the bill--
Cownie: I'm trying to answer your questions.
BH: OK. Who put in the language?
Cownie: Have you looked through who supports the bill?
I had checked the lobbyist declarations on Cownie's bill while working on this post and again while writing about the House debate. More than two dozen corporations or advocacy organizations registered in favor of House Study Bill 169/House File 518. Because bill drafts and legislators' work e-mails are not public records under Iowa law, I was unable to determine which companies or interest groups asked Cownie and Anderson to include which provisions.
Returning to the interview:
Cownie: Have you looked through who supports the bill?
BH: Yes, I saw, but I don't know specifically, was it Tyson Foods?
BH: Was it the Self-Insurers Association? Who suggested the language on the 67-year age cutoff? I know it's not in the final bill, but it was in the bill that you introduced with your name on it.
Cownie: It was a study bill that my committee that I chair, the Commerce Committee, filed.
BH: Who suggested the language? Who got that language drafted?
Cownie: My name is on it. I did.
BH: Right, you did. Who suggested--
Cownie: So I just answered your question.
BH: Who suggested the language? Your own colleagues admit that this is unfair, this shifting the burden of proof, the predominant language. Why was that in the bill?
Cownie: And it was amended out, wasn't it?
BH: Right, but why, why did you put it in your bill? Whose interests were you representing? The double-dipping issue that you noted could have been--
Cownie: These were all consistent with what other states have done too, that even surround us and border us.
BH: The predominant language is?
Cownie: Absolutely. 51 percent. You can go look it up.
I looked it up. Contrary to what some business lobbyist may have told Cownie, no state bordering Iowa puts the burden of proof on employees to show that workplace activity was the "predominant" factor in an injury. According to one of my sources, some House Republicans used this very map to persuade their colleagues to take that language out of the workers' compensation bill. (Carlson's amendment replaced "predominant" with "substantial.")
Returning to our interview:
BH: And the making shoulder injuries scheduled member, whose idea was that?
Cownie: These are--both of those are consistent with our surrounding states. Go look it up before you ask these questions that you don't know.
Although Cownie was entirely wrong about the predominant clause, he was closer to the mark on the shoulder language. Speaking on behalf of the Iowa Self-Insurers Association at a March 7 public hearing, Tyson Foods senior manager Todd Beresford argued that "Iowa has always been an outlier in compensating the shoulder as a body as a whole injury. In fact, every other state around Iowa treats the shoulder as a scheduled-member injury." (The relevant comments begin around the 45:40 mark of this video.)
Most bordering states do treat shoulder injuries as scheduled member, but under a 2012 appellate court ruling in Illinois, that state's guidelines now call for compensating shoulder injuries "based on loss of use of the man as a whole." Legislation to address that court decision has not advanced.
The Iowa Self-Insurers Association has not responded to my inquiry about their advice to Republican lawmakers drafting the workers' compensation bill. I infer that the shoulder language came from that organization, because Beresford focused on it during in his testimony, and former Administrative Law Judge Marlon Mormann observed at the same hearing that defining shoulder injuries as scheduled member would shift costs from self-insurers to insurance companies. Also worth noting: West Des Moines attorney Mark King has described the shoulder section as a "grand design" by meatpackers to "make those claims worth nothing." The Iowa Self-Insurers Association does not disclose its members but is viewed by some as a "front" for Tyson Foods.
Returning to our interview:
BH: I--well, I am aware that other experts in our state--
Cownie: I've answered, I've answered your questions. It is consistent with what other states have done that surround us.
BH: And your own colleagues thought it was unfair and needed to be taken out.
Cownie: And it got amended out, and it passed with bipartisan support.
BH: And the 67--
Cownie: The amendment did, and the bill did.
BH: No, the bill didn't have bipartisan support.
Cownie: The amendment that took that out had bipartisan support.
BH: Well, yes, because making a horrible bill slightly less horrible gets bipartisan support. Whose idea was it--
Cownie: In your opinion.
BH: to have the 67-year age cutoff, which was--
Cownie: It was a Commerce Committee study bill that I approved,
Cownie: and Representative Carlson was floor manager for. So, you can say that--
BH: But you were talking about, "People don't pull the strings." I'm asking you, who wanted to put that language in the study bill that had your name on it?
Cownie: Well, do you want me to go through the bill in terms of who supports it? Association of Business and Industry,
Cownie: Iowa Self-Insurers' Association,
BH: Who suggested the language--yes.
Cownie: John Deere & Company,
BH: That's right, I saw the list of--
Cownie: There's all these different companies and businesses and organizations, the Iowa Business Council.
BH: I saw the list of lobbyists, I know.
Cownie: So they all supported it, they all supported it.
BH: Who suggested the language on the 67-year cutoff? Whose idea was that to put that in the bill? I know it was taken out later. Your own colleagues--
Cownie: It was--
BH: That was your idea?
Cownie: It was a Commerce Committee study bill. Yeah. My name was on the bill.
BH: I understand that.
Cownie: Everything I put my name on--
BH: Your--how did you come up with the 67-year thing? 67, age 67 age cutoff. Why did you put that in your bill? That's what I'm trying to get at. Whose idea was that to put that in the bill?
Cownie: 67 is a--it was for permanent partial disability.
BH: That's right.
Cownie: So, that was--it's consistent with what is going on right now.
BH: Was that an--
Cownie: There have been some--there have been cases where workers' comp goes through the rest of your life, when they do that.
Cownie: So, that is--now that remains the same.
BH: Right. So, but you--was that ABI's idea? Was it [the] Self-Insurers' Association idea? Because Marlon Mormann said at the public hearing that if--some of those things, I mean, he said Michael Trier, who used to be the workers' comp commissioner, was very against that. I mean, were you talking to other people who--
Cownie: I can't speak for these other people. I can speak for myself. I approved the bill with it, and I approved it when it came out, I voted for that too. We took in account from all sides, and it came out. It didn't have support.
BH: But the putting the shoulder injury in scheduled member, that--as the former administrative law judge testified at the public hearing, he said that takes it into the Second Injury Fund which then the self-insurers don't have to deal with. So he said that shifts the costs onto other insurance companies from the self-insurers.
Cownie: We're just going in circles here. It's a non-factor. The bill no longer has that in there.
BH: Well the shoulder--
Cownie: And it's not going to happen.
BH: The shoulder injury still--the shoulder injury going to scheduled member is still in there.
Cownie: Oh, this is enough. I mean, I don't know what--if you want to report news on something that failed and didn't happen, have at it.
BH: I do--it's newsworthy because-
Cownie: It's not going forward, it's not in the bill.
BH: It's newsworthy, how did it get in the bill? You said, you said--
Cownie: It was a Commerce Committee bill that I approved as chair of the committee. So there you go.
BH: Right. And where did the language come from?
Cownie: The language came from the Legislative Services Agency who drafted the bill.
BH: Well, I know that people suggest language to the LSA when they draft bills.
Cownie: This is enough. I have constituents I need to speak with, good Lord.
BH: OK, well if you don't want to answer where it came from, you don't have to answer.
I didn't realize talking to constituents was such a priority for Cownie. The March 18 event--ten weeks into the legislative session, after many important bills had come and gone--was his first public forum of the year. Some House members schedule listening posts or accept invitations from community organizations two or three weekends a month. Schneider has taken questions from constituents at least four times already since the 2017 session began.
The Iowa Senate is scheduled to take up workers' compensation today; debate on the various Democratic amendments could last a long time. Senator Mike Breitbach, who is floor managing the bill, has offered an amendment to replace "predominant" with "substantial," take out the discriminatory age-based cutoff, and adjust the shoulder injury provisions. If his amendment conforms to the final version of House File 516, Republicans can substitute that bill's text for Senate File 435 and send the legislation straight to the governor. If senators find Carlson's amendment lacking and pass somewhat different language on shoulder injuries, the Senate bill would go to the House for approval.
Either way, Iowans will remain in the dark about who proposed the most heinous parts of a bill a former deputy workers' compensation commissioner called a "product of special interests."
UPDATE: I should have asked Cownie whether he was even involved in drafting the workers' compensation bill. Some sources believe representatives of the Iowa Association of Business and Industry and others put the bill together, then presented Cownie with a finished product to introduce. If that is the case, he may not have been dodging my question. He may honestly not know whose interests he was representing, which in some ways is even worse.
P.S.- During the House floor debate on March 16, Cownie claimed his bill would prevent abuses such as workers collecting benefits for being intoxicated on the job. Democratic State Representative Mary Wolfe later pointed out (around the 1:35:45 mark here) that he was wrong: current law stipulates Iowa workers are not entitled to compensation for injuries that occur while they are drunk or stoned. Rather, the Republican bill "would allow employers to deny benefits if an injured worker tests positive for drugs or alcohol," even if the trace amounts stem from substance use days weeks earlier, which did not influence the injury.