This commentary provides a state-by-state survey of key workers' compensation legislation from June to December 2008. Governors in California, Hawaii, New York, and South Carolina provided an extra level of action related to workers compensation law. Things may also heat back up after January 1 at the federal level. Caution: This is not intended to be an exhaustive summary of all workers' compensation legislation enacted by the states.

ARTICLE: Virtually all state legislatures have closed up shop for the year, their members venturing home for holiday breaks. Its an appropriate time, therefore, to highlight some of the key legislative changes affecting workers compensation law that have occurred since my mid-year report [see 2008 Emerging Issues 411].

For the most part, the past few months have been relatively quiet on the legislative front. No doubt the national election drew significant levels of attention away from more mundane issues such as workers compensation. Also at play within more than a few state houses were the usual cyclical processes that tend to make the January through June period much more active than the July through December time frame. And so it was that during the first half of the year, as has been previously reported, a number of state houses were busy debating compelling matters: the publication by the American Medical Association in late 2007 of the Sixth Edition of its Guides to the Evaluation of Permanent Impairment ("the AMA Guides"), the abuses--both perceived and real--caused by the classification/misclassification of employees as independent contractors, the ability of employers to ban the presence of guns in public parking lots near the employment premises. Another anecdotal observation: legislative activity may also be low during the second half of 2008 because a number of states, California and New York, for example, are still attempting to digest important workers compensation reforms put in place between 2003 and 2006. Not only are those states continuing to gather data relating to the effects of statutory amendments on levels of benefits and premiums, other states are observing their neighbors reforms to determine if any unintended consequences have resulted.

Governors in at least three states provided an extra level of action related to workers compensation legislation. Since June 1, nine separate workers compensation bills were vetoed by Californias Governor Schwarzenegger. Hawaii Governor Linda Lingle vetoed four pieces workers compensation. Four New York bills were vetoed as well. Governor Mark Sanford, of South Carolina, interjected himself into the workers compensation arena in a different way--issuing four executive orders between September 2007 and January 2008 mandating strict application of the American Medical Association''s impairment guides (such action had earlier been rejected by the legislature) and a change in the basis for fees paid to claimants'' attorneys. The matter landed in the courts, with the South Carolina Workers Compensation Commissioners contending the Governor was improperly interfering with the judicial process. A settlement was reached in early summer in which the Governor agreed to rescind the executive orders and the state supreme court subsequently dismissed the pending case.

On November 4, 2008, the voters of California passed Proposition 8, the voter initiative amending the California constitution to provide that marriage is a union between a man and a woman. Although technically not legislation, the provision will have profound impact on the rights of same-sex couples both within and without the workers compensation setting.

Things may also heat back up after January 1 at the federal level. With the Democratic majorities in both the Senate and House further solidified, we seem poised to revisit and debate the important issue of employee/independent contractor misclassification. Back in 2007, then Senator--now President-Elect--Obama had introduced legislation that would interject both the Department of Treasury (through the Internal Revenue Service) and the Department of Labor into the process of determining who is an independent contractor and who is an employee. Somewhat similar legislation is also before the House of Representatives. In several conversations I have had with state workers compensation officials, I sense that some are now wondering out loud if such efforts may signal a trend toward some sort of federalization of the workers compensation law. That, of course, remains to be seen.

Caution: This is not intended to be an exhaustive summary of all workers' compensation legislation enacted by the states.

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