New York 9/11 First Responder Hospital Worker Bill Gives Workers 75% Workers' Comp Benefits
Private hospital workers, emergency medical technicians (EMT's) and paramedics who were dispatched to Ground Zero after 9/11 will be potentially the first workers in New York State Workers' Compensation history to receive 75% of their lost wages, as opposed to the traditional 66 2/3% rate of compensation, based on a new bill passed last week in Albany.
This is a significant victory for these forgotten heroes of 9/11 and another victory for the hospital workers' unions in Albany. As reported in Workers' Comp Central:
- "New York Workers Compensation Alliance, which includes claimants' attorneys and other workers' advocates, praised the compromise bill Thursday.
Troy Rosasco, co-chairman of the alliance, said a board member of the organization helped draft the legislation.
"It is a great victory for some of the forgotten heroes of 9/11," Rosasco said. He said the bill will help bring parity with benefits already paid to public employees. "
Posted By WCA In 2007 WCA Workers' Comp Proposals
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New York State Senate Confirms Zachary S. Weiss as New Chairman of Workers' Compensation Board
Zachary S. Weiss, Esq, a lawyer and long time confidant to Governor Eliot Spitzer, was confirmed late last night as the new Chairman of the New York State Workers' Compensation Board. See Mr. Weiss' biography here. The New York Workers' Compensation Alliance wishes him well in his new position and pledges to work with him and his administration to better the plight of New York's injured workers.
Despite his new position, the Workers' Compensation Alliance (WCA) has been working with the new Chair since earlier this year on such issues as the "Rocket Docket Task Force" while he was Special Counsel in the New York State Insurance Department. In recent conversations with the Workers' Compensation Alliance leadership, the new Chair has stated a strong willingness to work with injured workers and their representatives to improve a system that has taken a decidedly "employer turn" in the previous administration.
The twin goals of speeding benefits to injured workers and lowering employers costs are attainable. For instance, eliminating costly and unnecessary medical depositions would help both injured workers and employers. In addition, the Chair will be overseeing the implementation of revised medical and vocational guidelines to help determine an injured workers' true level of disability and potential to return to work.
Again, the WCA welcomes Zachary "Zack" Weiss as the new Chair of the venerable and prestigious New York Workers' Compensation Board. He is a sharp, well seasoned professional. Injured workers need a strong advocate in their corner.
Posted By WCA In 2007 WCA Workers' Comp Proposals
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Spitzer Extends 9/11 World Trade Center Workers' Compensation Registration Deadline Until August 14, 2008
Congratulations to Governor Spitzer, Senate Majority Leader Bruno and Assembly Speaker Silver for extending until August 14, 2008 the time for World Trade Center rescue, recovery and clean up workers and volunteers to register for protection for future illnesses caused by their work in and around Ground Zero. Click here for further information and a blank registration form for your use. If you worked or volunteered in or around Ground Zero after September 11, 2001, please register today for the benefit of yourself and your family. Any questions, please feel free to contact the New York Workers' Compensation Alliance.
Posted By WCA In 2007 WCA Workers' Comp Proposals
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New York Workers' Compensation Reform: AFL-CIO Stands Firm on No PPD Caps
Art Wilcox of the New York AFL-CIO was the guest speaker at last week's successful Workers' Compensation Alliance fundraiser at the Grand Hyatt in New York City. Art Wilcox is one of the brightest minds in New York State on workers' compensation and is the key negotiator for organized labor on workers' compensation reform. He has been continually meeting with Gov. Spitzer's advisers and the New York Business Council Corporate Chieftains on this issue in recent weeks.
In light of the new Fiscal Policy Institute report exposing overwhelming workers compensation fraud by employers in New York, Mr. Wilcox announced to thunderous applause in the packed room that his boss, AFL-CIO President Denis Hughes, has stated that labor will not accept any givebacks on severe permanent partial disabilities. This is the same position as the Workers' Compensation Alliance which also represents non-unionized injured workers, often times made up of the working poor.
The working poor are disproportionately made up of African Americans, Hispanics and single women with children. Since they are the ones who would be most affected by caps on permanent partial disabilities, we should all thank the AFL-CIO for standing up for those among us who often times live in the shadows of our prosperity. As more light is shed on the workers' compensation reform debate, it is becoming increasingly clear that injured workers occupy the moral high ground while some greedy and dishonest employers ruin the system for all. Based upon his past track record, Eliot Spitzer knows how to deal with greedy and dishonest corporations.
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New York Times Reports Rampant Employer Workers Compensation Fraud in NY
The New York Times today reported the shocking news (see article below) that New York employers are cheating the workers' compensation system out of up to $1 billion dollars per year, according to a report released by the Fiscal Policy Institute. The news sent reverberations through the halls of Albany and sent policy makers and the New York State Legislators talking. The report was picked up by influential industry sites such as WorkersComp Central and the Workers Comp Insider, who provided their own comments and analysis. In addition, the new Business and Labor Coalition of New York (BALCONY) and the Public Employees Federation (PEF) called upon new Attorney General Andrew Cuomo to investigate and prosecute cheating employers.
Given the size of such fraud and the harm to the majority of honest employers throughout New York, it's interesting that the Business Council of New York State has not placed employer workers' compensation fraud on it's own priority agenda. They keep on trotting out the same old highly suspect statistics, but say nothing about rampant employer workers' compensation fraud....hmm? Certainly, eliminating such fraud would more than pay for the measly 7000 permanent partial disabilities found among the 150,000 indexed workers comp claims per year.
Permanent partial disabilities make up only 5% of the claims each year and fall disproportionately on the working poor. The working poor in New York State are your sisters, brothers and cousins and are more likely to be single women, African Americans and Hispanics. We don't believe that Gov. Spitzer or the State Legislature has any intention of making the working poor bare the brunt of any workers' compensation reform while rich corporate interests continue to cheat the system.
The below Times article by Steven Greenhouse is eye opening:
January 25, 2007
Study Says Many Firms Cheat New York Workers’ Comp System
By STEVEN GREENHOUSE
A new study estimates that employers cheat New York State’s workers’ compensation system by not paying $500 million to $1 billion a year in required insurance premiums, forcing other employers to pay higher premiums.The study by the Fiscal Policy Institute, a liberal research group, found that these illegal underpayments represent 15 percent to 20 percent of all the workers’ comp premiums that are supposed to be paid each year statewide.
Some companies pay no premiums while others underpay by underreporting the size of their work force to qualify for lower premiums, the study said.
Government, business and labor leaders say the noncompliance hurts the state’s business climate by forcing law-abiding companies to pay higher workers’ comp premiums when many corporations are already complaining that their premiums are too high.
“We were surprised to find this magnitude of noncompliance,” said James Parrott, the chief economist for the Fiscal Policy Institute. “This noncompliance has helped cause at least two things: very low benefits for injured workers in New York, which are among the lowest in the country, and second, despite these low benefits, workers’ comp premiums that are considered very high.”
Mr. Parrott said inadequate data made it hard to pinpoint the exact amount of cheating.
The report asserts that if more companies paid their full premiums, the extra money would enable the state to cut workers’ comp premiums over all and increase benefits for injured workers. The report maintains that a lack of enforcement has emboldened employers to cheat.
“Not being honest on payroll has become almost an accepted practice in New York State,” said Art Wilcox, a workers’ comp expert with the New York State A.F.L.-C.I.O. “It hurts the competitiveness of a business that does the right thing. It hurts the competitiveness of an insurance broker who refuses to play games with payroll. And it certainly hurts any insurance carrier who won’t bend the rules because they’re competing against people who will.”
Michael Moran, a spokesman for the American Insurance Association, said he found it difficult to believe the level of noncompliance found by the study. “It is very important for insurance companies to be paid correctly for all the people they cover,” he said. “They work at it very hard. They try to audit to make sure that things are right.”
The Fiscal Policy Institute based its calculations on financial numbers filed with state agencies. It bolsters the finding of a report last year by the state’s association of insurance agents, which estimated, based on inside knowledge of industry practices, that up to 20 percent of New York’s employers did not pay all their required premiums.
“New York’s honest businesses who are playing by the rules have had to subsidize those who don’t even cover their employees or those who seriously underpay for the coverage they do have,” said David Dickson, president of the association, Professional Insurance Agents of New York State. “It approaches plain fraud.”
Gov. Eliot Spitzer has pledged to make major changes in the workers’ comp system, hoping to hold down premiums and increase benefits. The maximum benefit an injured worker can now obtain is $400 a week.
“Although we do not know the magnitude of the underreporting of workers’ comp obligations, we recognize that it is a serious problem,” said Christine Anderson, a spokeswoman for the governor.
Insurance experts say that a company with, say, 100 employees might tell its insurer that it has only 70 workers and then pay premiums for only 70.
But if any of the company’s 100 employees are injured on the job, they would be likely to qualify for worker’s comp benefits — either medical coverage and weekly benefits in lieu of wages — when they are out of work. This means that the amount collected in premiums might fall short of the amount spent on benefits. As a result of such a shortfall statewide, insurers often pressure New York officials to increase premiums for all employers in an effort to balance total premiums paid in with total benefits paid out.
“The lack of aggressive enforcement forces everybody in the process to bend the rules,” said Mr. Wilcox of the A.F.L.-C.I.O. “If insurance company A enforces the law but all the rest don’t, then the client will end up with insurance company B or C or D.”
In finding underpayments, the Fiscal Policy Institute first looked at the total amount of employee payroll — $389 billion — that the state’s employers reported for 2003 to the Labor Department and Tax Department when they paid their unemployment insurance taxes. Then the institute examined the total payroll reported to the state agencies and the industry association that handle payroll data for employers paying workers’ comp insurance. The total payroll reported for workers’ comp came to just $311 billion (after the policy institute made some adjustments to account for excluded job categories.)
“Manufacturers are paying significant amount of workers’ comp, and they obviously pay more than they need to because it looks like a large percentage of companies aren’t paying into the system,” said Randall Wolken, president of the Manufacturers Association of Central New York. “If we’re inadvertently increasing some companies’ costs, we inadvertently drive some companies out of the state.”
Last July, the state’s insurance superintendent, Howard Mills, denied a request by insurers to increase workers’ comp premiums, saying, “The insurers’ efforts to fight fraud — both claimant and employer fraud — can be said to be anemic at best.”
At the time, Mr. Mills, who stepped down last month, said that without a greater commitment by insurers to fight fraud, it would be hard to justify any overall increase in premiums.
One common practice, insurance experts say, is for companies, often taxi or trucking companies, to say that their drivers are independent contractors (who are not required to be part of the workers’ comp system) when by many definitions they are actual employees.
As part of the campaign against fraud, Manhattan District Attorney Robert M. Morgenthau and the State Insurance Fund, a state agency that provides workers’ comp coverage to 194,000 employers, arrested Anthony Spychalsky last month and charged his company, NY Ceiling & Drywall, with underpaying premiums by at least $207,000. Mr. Spychalsky pleaded guilty on Jan. 8 to insurance fraud.
Many industry experts say the State Insurance Fund, which focuses on providing coverage to small business, is more aggressive in pursuing premium fraud than private insurance carriers.
Robert Lawson, the insurance fund’s spokesman, said that in 2006, the fund’s 200 auditors did 88,398 field audits. All the audits yielded an additional $89 million in revenues, coming to $493,000 per auditor, Mr. Lawson said.
Mr. Dickson, the head of the insurance agents’ group, said, “The level of audits that are conducted by the commercial carriers and the frequency of the audits, I don’t see that at the same standard as the State Insurance Fund’s efforts.”
Kenneth Adams, president of the Business Council of New York State, said, “Whatever can be put in place to limit and reduce fraud by employers or injured workers, that will produce benefits throughout the system.”
Copyright 2007 The New York Times Company
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Gov. Spitzer's State of the State: No Caps on Permanent Partial Disabilities!
Eliot Spitzer is a smart guy (Horace Mann, Princeton, Harvard Law) who surrounds himself with smart people. It is becoming increasingly clear that the new Spitzer administration has come to the conclusion that it cannot trust the data and misleading statistics on workers' compensation costs, insurance company profits and benefit levels put forth as gospel (and unquestioned by the slumbering New York press) by the Business Council of New York State and the insurance lobby.
The Governor's State of the State Address today was important for what it didn't say. Much to the chagrin of the Business Council and insurance lobby, he did not say he favored capping permanent partial disabilities (PPD's). He simply said that the system needs to be reformed - something those of us who have represented injured workers these last fourteen years know all too well.
The Business Council (nice new website funded by MetLife, IBM, GE, Citigroup etc) largely relies on statistics from the insurance company CEO controlled National Council on Compensation Insurance (NCCI). Check out this 2006 "State of Workers' Comp Insurance Line" video or PDF document to learn what NCCI is all about (Short version - gouging New York business with increased premiums to make up for investment losses, even though claims are down!) It's eye opening to say the least!
Let's now provide all stakeholders and policy makers with a reliable source of workers' compensation statistics and analysis - Professor John Burton's Workers' Compensation Policy Review. Ever since his days as a professor at Cornell's School of Industrial and Labor Relations to his years as Dean of the Rutger's University Business School, Burton has been one of the leading non-partisan authorities on workers' compensation policy and economics in the United States. His 73 page July 2006 report entitled: "Workers' Compensation: Benefits, Coverage and Costs, 2004" is the most up-to-date state by state comparison of key workers compensation data, and is must reading for anyone who wants to get workers' comp reform right.
Over the next few weeks, we will use this report and others to prove why the Business Council's misleading statistics only prove the old adage, "Figures don't lie, but liars can figure!"
Posted By WCA In 2007 WCA Workers' Comp Proposals
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Spitzer and Workers' Comp Reform: What is a "Permanent Partial Disability" and Why It Should be Protected
So big business and the insurance company lobbyists (NYCAN's Larry Gilroy) want to cap "permanent partial disabilities" under the New York State Workers' Compensation system. They say it will be the panacea that results in the revitalization of the upstate New York economy. But before we throw the baby out with the bath water, let's shine some light on the faces of those injured workers who live with "permanent partial disabilities".
George C. was an 47 year old upstate New York union carpenter earning almost $60,000 a year prior to his work related injury. He has a wife and three kids. On 10/14/05, he lifted a piece of sheet rock over his head and suddenly felt a sharp pain in his back which caused him to drop to the floor. He was taken to the local hospital by ambulance where an MRI revealed a large herniated disc in the low back impinging on his spinal cord. George's doctors suggested immediate surgery to relieve the pressure on the spinal cord and George consented to surgery. The doctors requested authorization for surgery from the workers' compensation insurance carrier, which was granted in record setting time of about three weeks. George began to receive New York workers' comp benefits at the maximum benefit level of $400/wk (about 1/3 of his wages). George wondered how he would pay his family's bills.
On 11/11/05, George underwent a two hour lumbar laminectomy where fragments of disc material were removed from his spinal canal. Initially after surgery, George felt immediate relief from the pain and numbness in his right leg. He still felt a constant "toothache" type pain in his lower back, but was hopeful that this would decrease as he began physical therapy. Unfortunately, after 12 weeks of physical therapy, George's lower back pain was still registering a 7/10 on the pain scale. He was still unable to take out the garbage, lift his new one year old grandson or sit in one position for longer than 1/2 hour. George was still taking Vicodin for pain and Flexeril for muscle spasms.
On 2/15/06, George's long time employer, Black Hawk Construction, let him go leaving him and his family without any other medical coverage. His wife's job as a waitress in the local diner did not provide any health insurance. George spoke to his orthopedic surgeon about alternative treatments that might help him return to work. His surgeon suggested a consultation with an anesthesiologist who specialized in pain management. The anesthesiologist suggested a series of three lumbar epidural steroid injections to be done over a period of six weeks as an outpatient at the local hospital. After the first injection on 4/10/06, George's pain decreased to about a 3/10 on the pain scale and he was feeling significantly better. His pain continued to be well controlled initially after the second and third injections also. Unfortunately, when the medication from the final injection wore off by late May 2006, George's pain had returned to a 7/10 on the pain scale and his condition was getting worse.
George now could not control his bladder when he coughed, had put on an extra 20 pounds due to a lack of physical activity, had become increasingly depressed over not working and had lost much of his libido. He went back to his orthopedic surgeon who took another MRI of his spine which found marked degenerative disc disease and instability of the spine. The surgeon suggested a lumbar "spinal fusion" by grafting bone from his hip to stabilize George's spinal column and prevent further worsening of his condition. After waiting over two months for the workers' compensation insurance carrier to authorize the second surgery, George finally had his back fused on 9/7/06 (right after Labor Day). Like his first surgery, George initially felt a little better, and his pain four weeks post-surgery was 5/10. However, George's pain again began to steadily increase and an x-ray done 12 weeks post surgery showed a failed fusion at the graft site in the spinal column. Because the fusion was unsuccessful, he was unable to undergo further physical therapy.
Despite a pro-active course of sustained treatment, George's doctors now diagnose his condition as "failed back syndrome". His only course of future treatment is to rely on increased pain medication. He has become increasingly depressed and his doctor has referred him to a psychiatrist to cope with loss of his career. He now walks with a cane and is frequently incontinent. The financial strain has caused him to put his house up for sale, sell his much loved fishing boat and created marital problems. There are days he would like to "call it all quits".
Under the objective Workers' Compensation Board Medical Guidelines" promulgated as part of the Pataki reforms of 1996, George has a "Permanent Partial Disability" and would be entitled to ongoing workers' compensation benefits until such time that he was able to earn as much as he made prior to his accident lifting sheet rock. He would not be considered "Permanently Totally Disabled" because he does not need a wheelchair, does not need assistance bathing himself and can drive short distances himself. He is now 48 years old, living in constant pain and his economic future is bleak. Should New York State "cap" this gentleman's permanent partial disability benefits?
Now let's assume, for argument's sake, that George with his high school education can be retrained by the state for some type of less physical work AND some employer (Walmart????) will hire him cane and all ( I wouldn't bet on it! ). Will he ever earn as much as he did as a union carpenter?. Had George's employer given safety classes on proper lifting techniques or provided back belts to its employees, could this accident have been prevented? Would not prevention be in the best economic interests of both George and his employer?
Bottom Line - to date, the New York AFL-CIO , NYCOSH and the New York Workers' Compensation Alliance have steadfastly refused to do a devil's bargain with "'permanent partial disabilities", i.e. trade a "cap" on permanent partial disabilities for an increase in short term benefit levels. We know that in the long run it's bad for most injured workers. Such a deal could have been done with the full blessing of both Governor Pataki and the Business Council years ago had we not stood our ground and taken the moral high road. To date, Governor-elect Spitzer has a record taking the moral high road which elevates him from the levels of mere politicians to the almost Lincoln-esque stature of a statesman. As Hubert Humphrey once said, the "the moral test of government is how it treats the children, the elderly and the disabled". I've got a funny feeling that the Governor-elect would agree with that statement. His Inaugural Address is on January 1st. We'll be listening.
Posted By WCA In 2007 WCA Workers' Comp Proposals
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Workers' Comp Reform Debate Heats Up in Albany
Workers' Comp Central is reporting today (free registration required) that the battle lines are being drawn in the upcoming debate over workers' compensation reform in Albany. The major players are the New York State AFL-CIO, NYCOSH and the New York Workers' Compensation Alliance (WCA) representing the interests of severely injured workers, the New York State Business Council representing the interests of employers and of course, key policy advisors to Governor-elect Spitzer. Absent from the debate thus far is the insurance lobby, whose interests are often in conflict with both employers (premium gouging) and workers (outrageous claims handling).
One of the major stumbling blocks will be how workers with permanent partial disabilities (PPD's) will be treated in the future. Because of age and vocational factors, many of these workers are effectively driven from the workforce due to their injuries (try applying for a job after stating you have a bad back due to an old workers' comp injury. In the real world, you don't get the job if you are honest).
New York has a long and proud history of taking care of severely but partially disabled workers. It would be a sad day, and even worse public policy, to require workers to be "invalids" in order to collect compensation benefits for life. If hard "caps" are placed on PPD's like the Business Council is advocating, New York's cities and counties will see an explosion in the welfare rolls. Thankfully, when candidate Spitzer met with the Workers' Compensation Alliance last year, he unequivocally indicated his support for not capping permanent partial disabilities.
Below is the entire text of the Workers' Comp Central article:
New York -- Spitzer Expected to Make Sweeping Changes in NY Comp: Top [12/11/06]
An alliance of New York attorneys and other advocates representing 200,000 injured workers called for sweeping reforms in the state's workers' compensation system Friday and said it has high hopes for Gov.-elect Eliot Spitzer."We think he's going to take a hard look at insurance companies before he proposes any major change in workers' compensation," said Troy Rosasco, who co-chairs the New York State Workers' Compensation Alliance.
"There are already meetings going on, and the time will be sooner rather than later," Rosasco said. "I would think we would have substantial workers' comp reform of some sort or another within the first six months of the Spitzer administration."
Spitzer's transition team did not respond to a request for an interview Friday. And the veteran state attorney general is keeping his own plans for workers' compensation reform close to his vest.
He has told participants in a series of meetings intended to forge a compromise among employers, claimants' attorneys and the unions that they won't get a preview of his plans until his inauguration next month.
But Spitzer gained national attention with a string of major settlements with insurers over allegations of accounting irregularities and the payment of illegal contingent fees to secure business.
Most notably, Spitzer signed a record-setting $1.65 billion settlement with American International Group in February, after he accused the insurance giant of cooking its books to smooth out quarterly financial earnings reports.
That surpassed his $850 million agreement with Marsh & McLennan over its use of continent commissions paid to brokers.
And the AIG case led to the ouster of former company CEO Maurice "Hank" Greenberg and his chief financial officer, Howard Smith, as well as a string of ongoing civil and criminal cases.
"He's a good sheriff of the industry," Rosasco said.
With the New York State Assembly set to return to Albany in January, Spitzer has promised to call a summit meeting of shareholders in workers' compensation.
Reforming the system was a major part of his campaign, along with rescuing the beleaguered economy of upstate New York.
The state of the economy has pitted the alliance against the Business Council of New York State and its affiliate, New York Workers' Compensation Action Network (NYCAN).
NYCAN has called on Spitzer to impose the state's first cap on permanent partial disability, saying the PPDs account for 15% of the state's workers' compensation cases and 75% of the expenditures.
The alliance is opposing the caps and pushing hard to raise the maximum weekly benefit for injured workers, which has been capped at $400 since 1992.
On Friday, the alliance called for increasing the maximum benefit to two-thirds of the state average weekly wage. Suggesting a phased-in payment schedule, the alliance also is seeking to raise the minimum weekly rate from $40 to $120.
The alliance wants to raise the benefit amount under the state's Disability Benefits Law to one-half the claimant's average weekly wage without a maximum limit. And it wants Spitzer and lawmakers to require the state Workers' Compensation Board to set a future revaluation date for workers with PPDs, at which time the worker would have to demonstrate an attempt to reenter the labor market.
The proposals released Friday would increase the dollar limit for required pre-approval of medical services from $500 to $1,200 and require private carriers to pay for medical care while workers' compensation claims are pending.
Finally, the proposals would abolish the Compensation Insurance Rating Board and transfer the job of ratemaking classification to state government.
"The biggest issue and the biggest stumbling block we will face in the upcoming negotiations is how injured workers with permanent partial disabilities are treated," Rosasco said. "If he (Spitzer) were to implement a cap, those who remain out of work will become wards of the state welfare system."
Citing upstate New York's depressed economy, NYCAN said in is recently call for action from Spitzer that brokering a compromise on workers' compensation is "the best way to send a signal that he will boost upstate's fortunes."
NYCAN warned that New York has the second-highest average workers' compensation claims in the nation despite the fact that its maximum weekly benefit hasn't changed in more than a decade.
The group said employers' costs are 15% above the national average. Average claims are more than $16,000, up from $11,793 two years ago.
The group called for limiting PPD awards to 10 years.
Current Gov. George Pataki proposed reforms a year ago and said he would slash employers' costs by more than 15% while boosting benefits by 25% for injured workers.
But Pataki's package ended in a legislative gridlock during the 2006 session. Rosasco said he expects Spitzer to fare better, if workers' advocates succeed in severing the issue from the economic fortunes of upstate New York.
"There is no evidence that says the upstate economy has been hurt by workers' compensation costs," Rosasco said. "Frankly, they have not been able to attract business after a large part of the manufacturing base left for Southeast Asia."
--By Michael Whiteley, WorkCompCentral Southeast Bureau Chief
mike@workcompcentral.com
Posted By WCA In 2007 WCA Workers' Comp Proposals
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