A significant impediment to rousing support for occupational health and safety is the image of
injured workers as scam artists; pot bellied middle age men lounging poolside tipping a beer;
women with reported respiratory difficulties enjoying a cigarette; or fathers claiming back
injuries while still able to lift their children. Certainly, people faking injury or falsifying workers'
compensation claims should be penalized, but those with legitimate claims should not be
punished alongside them. Labeling all injured workers as frauds damages the esteem and image
of people filing legitimate claims-the majority of people on workers' compensation. It makes
their recovery that much harder. The Myth of Workers' Compensation Fraud In recent years, the
insurance industry's focus on cheaters and malingerers helped push through national workers'
compensation reform, a profitable cost-cutting campaign supported by outrage over alleged
abuse of the system. The problem, however, is that the fraud image is false for the vast majority
of workers' compensation cases. Studies show that only 1 to 2 percent of workers' compensation
claims are fraudulent. 1 ' Certainly, the tens of thousands of workers killed every year were
hardly aiming for a free ride on their employer's tab. Jason Gunnett has literally seen both sides.
While guiding a CHAPTER 2 13 large piece of metal being moved by crane, Jason's hand was
crushed so badly that it was almost amputated at the wrist. Once an injured construction laborer,
Jason is now a degreed safety professional whose responsibilities include investigating
occupational accidents. "Even though I was a hard worker and was upset to learn I could not
work for months, after a while, I got used to a new pattern of sleeping late and not sweating
through a day of manual labor. My company had no light duty or return to work program and I
definitely felt the temptation to avoid going back to work." Jason was fortunate that his pain was
adequately controlled by medication, and due to his personal situation, he was able to
comfortably manage through the financial loss. Now a corporate industrial hygienist and safety
engineer, Jason says, "You have robe a strong person to not become cynical regarding workers'
compensation. Being a safety professional means you need to protect the employee first, and you
have to investigate all reports of injury and illness with an open mind. Workers' compensation is
hard to prove either way. There is no easy answer." Even though the actual percentage of
fraudulent cases is small, it is unacceptable and maddening for employers and those who manage
compensation claims because it is so difficult to prove. The automatic and widespread suspicion
of fraud, however, is unjustified and has grown so great that it taints almost all claims even
though 98% are valid. *** A national prime time television show aired a show on workers'
compensation fraud, opening dramatically with footage of an old man working on a farm and a
lawyer interviewing that same old man. Announcer: This is DATELINE Monday, May 29th,
2000. Tonight. It's a crime that takes money out of your pocket, it 14 A JOB TO DIE FOR starts
with a lie. Unidentified Lawyer: Are you able to lift anything? Mr. Emil Mentel: A cup. Lawyer:
A cup? Mr. Mentel: This is how I am. Announcer: Think he's a broken old man? Here's what
hidden cameras showed he was really doing while collecting money from you. Mr. Manny
Pageler: The man can grip. I see the legs working, I see the arms working. John Larson
reporting: When you first saw that videotape of him throwing that bale of hay, what was your
reaction? Mr. Pageler: I was mad. Announcer: John Larson with lies, ripoffs and videotape. 3
One of the many incendiary messages in this show is in the announcer's very first line when the
viewer is informed that "money is taken right out of their pocket." Seconds later, the announcer
again informs viewers that the supposedly injured man was throwing hay bales "while collecting
money from you." Money does not mysteriously float out of viewer's pockets as portrayed by the
sensationalized lead into this segment. First, money paid to workers' compensation claims,
including fraudulent ones, comes directly from insurance industry profits. Only after dipping into
insurer profits does the cost get passed onto employers purchasing workers' compensation
insurance. Then, the costs are spread over the entire group of policyholders; costs are not
charged back to each employer dollar for dollar with their injuries. If employer rates do increase,
the employer pays for it by one or more of the following ways: taking it out of the company
profits; reducing wages; and passing it on to consumers. For the smaller number of companies
that choose to self-insure, they pay the claims directly rather than pay premiums for workers'
compensation insurance. Then, and only then, CHAPTER 2 15 does it come out of the general
public's pocket IF the public chooses to purchase the specific products made by companies with
high workers' compensation rates. In neither case does money flow out of unsuspecting people's
pockets as portrayed by the insurance industry. The man featured in the NBC Dateline segment,
Mr. Mentel, plead guilty to the felony charge of insurance fraud. He faked his disabilities and
took advantage of both the workers' compensation system and a 74-year-old woman who gave
him a job as an apartment manager. It was the worst of worst case scenarios. What made it such
good drama was the fact that Mr. Mentel was an 80-year-old man who could apparently lie
without shame and toss around 120-pound hay bales. On top of that, an insurance company
investigator caught the shocking behavior on videotape. Stone Phillips explained, "Because of
his age, Emil Mentel was given no jail time. He was sentenced to five years probation and
community service. He was also ordered to repay the insurance company the amount paid out on
the claim, more than $118,000." Instead of emphasizing the fact that a cheat was caught, the
show furthered the perception that claimant fraud is a widespread form of art. For example, after
introducing Frank Meyer, from the Sacramento district attorney's office, John Larson concludes:
" ... And Meyer promises the courts will continue to go after Workers' Compensation scam
artists." Of course, the courts should prosecute wrongdoing, especially the intentional abuse of
systems designed to help people. The real message here, however, is the threat of criminal
prosecution. It is this threat that fosters under-reporting of legitimate claims and the overall
shame of being an injured worker. The rotten taste in the viewers mouth from a truly distaste• ful
act is blurred with anger as the state prosecutor is allowed to say, "We want to send the message
that these are serious offens- 16 A JOB TO DIE FOR es, that if you commit this kind of crime
and get caught, that there's a good chance you will be prosecuted." It was like a commercial for
the workers' compensation insurance industry and their anti-fraud campaign. The show neglected
to mention that in 1998, workers' compensation costs were only 1.35% of payroll down from a
peak of 2.17% in 1993. It also failed to explain that between 1992 and 1998, workers'
compensation costs to employers decreased 38% as a percentage of payroll while benefits to
workers declined 35%.4 Instead, in the middle of the segment, reporter John Larson asserts,
"After all, workers' compensation fraud is quite common. The industry estimates it adds up to $5
billion a year." 5 The American Federation of Labor and Congress of Industrial Organizations6
(AFL-CIO) has heard this $5 billion claim before. The union's workers' compensation newsletter
explained, "These allegations have absolutely no relationship to fact but are based on 'attitudes'
about fraud ( when respondents say they 'know' of someone supposedly on workers' comp even
though he or she might be capable of working). A similar claim put workers' compensation fraud
at 20 percent of the total of all claims in California in 1996; the truth was that suspected fraud
that year, according to the state's Department of Insurance, was three-tenths of one percent' " 7 In
the summer of 2000, an independent team of experts-}. Paul Leigh, Ph.D., Steven Markowitz,
M.D., Marianne Fahs, Ph.D., M.P.H., and Philip Landrigan, M.D.-published a book titled, "Costs
of Occupational Injuries and Illnesses." In it, they estimated the national price tag for fraudulent
claims to be 1.2 billion dollars, roughly one-fourth of the insurance industry estimate. Conceding
that $1.2 billion is still a lot of money, the Leigh team put it into perspective by explaining that it
was only about two-percent of all workers' compensation dollars spent in their sample year of
1994.' Whether the true fraud rate is less CHAPTER 2 17 than one-percent or as high as twopercent, it is hardly "quite common. 11 The Dateline show provoked a response from the AFLCIO Department of Occupational Health and Safety, which wrote: On May 29th NBC Nightly
News and its program Dateline chose again to focus on an instance of v,lOrker fraud in workers'
compensation. Despite the fact that studies show that claimant fraud in this system is minimal-in
California, worker fraud is less that 3 tenths of 1 percent of all claims; and in Wisconsin, it is less
than 1 tenth of 1 percent of claims, these exposes, encouraged by irresponsible allegations from
the insurance industry, feed the myth that workers injured on the job are frauds, cheats, and
malingerers. 9 From the opposite side of the country, Robert Stern of the Washington State
Labor Council, AFL-CIO also sent a letter to Dateline reporter Tom Brokaw. He received no
response. Dear Mr. Brokaw: Approximately a week and a half ago, you broadcast a report on
fraud by an injured worker in California. I frankly do not know whether or not this worker in fact
committed fraud. I have no sympathy for workers who defraud the Industrial Insurance system.
What is astonishing to me is that your report focused on what is acknowledged by the vast
majority of academic experts to be, by far, the source of the lowest amount of fraud in the
Industrial Insurance system. In every study that has been done on fraud in Workers'
Compensation, employer, insurer, and provider fraud are found to be a dramatically greater
problem than claimant fraud. At a time when injured workers throughout this nation are suffering
enormously from "deform" of the system driven primarily by insurance providers, your report
gave a seriously skewed presentation on the problems with the system. 18 A JOB TO DIE FOR I
do not believe you have a serious interest in what is happening to injured workers, but if by
chance you do, I urge you to take a look at the recommendations that were made by the National
Commission on Workers' Compensation during the Nixon administration ( an administration not
particularly sympathetic to workers), then have your staff compare those recommendations to
today's reality for injured workers. We should be ashamed of what we are doing to injured
workers throughout this nation. I wish I did not feel cynical about sending you this e-mail. I am
sorry that you have bitten the insurance industry bait, hook, line and sinker." 10 -Robert Stem,
Special Assistant to the President, Washington State Labor Council, AFL-CIO In the 1970's,
benefits to injured workers sunk so low that President Nixon appointed the National Commission
on State Workmen's Compensation Laws to study the issue. It recommended that all states pay
totally disabled workers at least twothirds of their salary up to a maximum of the state's average
weekly wage. Still, 17 states have not complied with the Commission's recommended standard
wage. 11 Studies support Stem's assertion that employer fraud is much greater than claimant
fraud. In Florida, a 1995-1996 compliance audit found that of 22,758 employers contacted, 13 .1
% were operating without legally required worker's compensation insurance. In just the next
year, the auditors found the rate grew another half percent." Stating that 13.6% is probably an
underestimate, the audit report explained that in addition to the large number of employers
making no attempt to buy the insurance, still others cheat the system by intentionally underreporting or misclassifying its payroll and by falsely representing employees as independent
contractors. 13 In a 1997 press release, the Wisconsin Department of Workforce Development
stated that workers' compensation CHAPTER 2 19 fraud in the state was less than six-tenths of
one percent. H As recently as November 1, 2000, the same department reported on fraud from
1994 to 1999 concluding, "The public perception of workers' compensation fraud is
exaggerated," and "The documented level of workers' compensation fraud in Wisconsin is
minimal."15 A few months after the Dateline show aired, the LA Times printed, "Anti-Fraud
Drive Proves Costly for Employees," and found, "Over the last decade, employers and insurance
carriers have saved billions of dollars as legislatures in many states rolled back benefits, more
narrowly defined workplace injuries and introduced impediments to collecting for them."" And
the J. Paul Leigh team concluded, "The dollar amount of fraudulent workers' compensation
claims submitted by workers pales in comparison to the amount for claims never filed and, more
importantly, the overall small amount of total costs paid by workers' compensation systems.
Moreover, fraud committed by insurance companies at workers' expense is likely to be
significant."" The Leigh team further estimated that workers' compensation covers only 2 7
percent of all occupational illness and injury costs and that taxpayers bear a financial burden of
28.5 billion dollars -close to six times the estimate of workers' compensation fraud~-through
Medicare, Medicaid, and Social Security. Further, they discovered that costs were borne by
injured workers and their families, by all workers through lower wages, by employers with lower
profits and by consumers with higher prices. Specifically, they estimated that injured and ill
workers and their families absorbed about 44% of the costs." Now that is injustice worthy of
outrage. *** Where Are the Benefits? Fraud is committed in order to gain something. For most
20 A ]OB TO DIE FOR people on workers' compensation, there is no reward, financial or
otherwise. Indeed, most suffer financial loss. Workers' compensation benefits include partial
replacement of lost wages, medical expenses and survivor benefits for dependents, but for most
injured or ill workers, the system costs them money from day one. Benefits like overtime or use
of a company car are lost. Depending on the state, workers have to wait 3- 7 days before
receiving payment. If the insurance company denies the claim, an appeal to the state workers'
compensation board can take anywhere from 30 days in Michigan to 1.5 years in Iowa. 19 No
payments are received in the meanwhile. In August of 2000, researchers at the non-profit Rand
institution reported that workers from the largest firms in California that filed for permanent
partial disabilities received $19,000 in workers' compensation benefits but lost an average of
$39,500 in wages. The report also found that, for many claimants, workers' compensation
benefits failed to meet the common standard to replace two-thirds of the workers pre-tax
dollars." California is one of the states that does not comply with the recommendation from the
National Commission on State Workmen's Compensation Laws to provide up to 200% of the
state's average weekly wage. Instead, the maximum payment is 66% of the state's average
weekly wage. (Workers earning less than the average weekly wage receive 66% of their actual
earnings.) Californians temporarily disabled on the job, therefore, receive a maximum benefit of
$490 per week even if their income was much higher than that prior to the injury or illness. In
other words, workers are not compensated for income over $38,258. Even worse, workers
temporarily disabled in New York receive only 48% of the state's average weekly wage-a
maximum of $400 per week. New Yorkers, therefore, are not compensated for incomes over
$31,231. Only one state, Iowa, has complied with the 30-year-old National Commission's
recommendation to provide 200% of the state's average weekly wage, CHAPTER 2 21 a
maximum benefit of $1,031. 21 Stranger than the disparity between state disability benefits is the
value allocated to permanent disabilities. If a worker cuts their hand off in Pennsylvania, it's
worth $228,620. A worker suffering the same fate in Washington, however, would receive only
$6,572. Nationally, the average benefit for a lost hand is $94,734. 22 The state you happen to
work in, however, makes all the difference. Regardless of how good the policy, private health
insurance is not responsible for workplace injuries or illnesses. That's why dental and medical
claim forms have a little check box next to the standard question, "Is this claim related to a
workplace accident7" If the yes box is checked, they can and will deny the claim. In addition to
the financial loss, there are other drawbacks to being on workers' compensation. For example,
workers filing for workers' compensation forfeit their medical privacy, and have little, if any,
choice in medical care. Many are followed and investigated by private detectives. Some
companies have policies where they automatically use a private investigator, for instance, on
every back injury with ten days out of work or randomly on ten percent of all claims. One
injured worker explained how upsetting it was to sit in a courtroom and find photos of her
walking her daughter to school, an activity that revealed nothing about her claim. Marlys Hanis
wrote a report for the non-profit Consumer Reports magazine and summarized the national
workers' compensation situation this way: "Workers deserve more help from the workers'
compensation system than they're getting."" Similar to the Leigh team's findings, Hanis also
concluded that inadequately cared for injured workers cost taxpayers money when they have to
file for Social Security or public assistance." After publishing the report, Harris explained her
perception on why injured workers are poorly treated. She said, "The pop- 22 A ]OB TO DIE
FOR ulation of injured workers is small and unorganized. People distrust the issue and it is hard
to get them to see it." She elaborated, "The insurance companies admit that workers were injured
but then they refer to the long-te1m, ongoing problems as symprom exaggeration. It's insidious. I
even found myself wondering if I was being taken. Acknowledging the initial injury and then
saying it is the employee's fault for not going back to work does make you suspicious. It is hard
to combat."" The President and CEO of the National Council on Compensation Insurance, Inc.,
Bill Schrempf, wrote a letter to Consumer Reports expressing disapproval of the report. Calling
it one-sided, Mr. Schrempf listed the changes generally sought by workers' compensation reform
as: • Root out fraud • Improve return-to-work incentives • Improve the equity and delivery of
benefit payments • Reduce attorney involvement26 But the very four workers' compensation
changes that Mr. Schrempf lists come from slicing the injured workers' piece of the pie that
much thinner. His list, intended to balance the issue, instead confirms how injured and ill
workers ultimately pay for the cost cutting. Mr. Schrempf goes on to say that as a result of
workers' compensation reform, "fewer workers are being injured or killed on the job." While
businesses and insurance companies have no doubt saved money from workers' compensation
reform, taking credit for anything more-especially accident reduction-is quite a stretch of the
imagination. His goals say nothing about improving accident prevention. If anything, the fear of
criminal prosecution and the stigma associated with the "injured worker" image reduced claims
not by preventing injuries but by preventing the reporting of those injuries. CHAPTER 2 23
There are innumerable reasons why workers don't want to file for workers' compensation. Many
sincerely do not want to burden their employers so they cope with injuries and illnesses on their
own, seeing their regular doctors and using sick days if they need to. Some ignore their problems
until they become unbearable, costing more suffering and money in the long run. Many fear the
threat of criminal prosecution, like the one clearly made on the NBC Dateline show, if they
cannot prove their injury or illness occurred at work. At companies with safety incentive
programs, injured workers can not only ruin the company and department safety record but they
can also cost their bosses and co-workers rewards like money, time off with pay or the prestige
of a safety award. Todd O'Malley is an attorney that knows the system. He is founder and partner
of O'Malley & Langan, an East Coast law firm representing injured and ill workers; chairman of
the workers' compensation section of the Association of Trial Lawyers of America; and Board
member of the Workplace Injury Litigation Group, a national non-profit organization of
attorneys representing injured workers. One of his clients had his foot run over by a forklift.
O'Malley explains, "It looks like a football. It is huge and discolored and he can't wear any shoes.
This guy is so ashamed that he leaves his window blinds drawn so his neighbors don't see him
doing anything. One day I asked him, 'What could they possibly see you do? You can't do
anything anyway!' He told me, 'Sometimes I hobble around just to do some stuff.' So, here is a
guy with a huge, purple foot so big that you can't possibly miss it. He is hobbling around in his
own house, and he is still ashamed to be an injured worker." O'Malley concludes, "The
perception of injured workers as scams is even held by injured workers. One injured worker once
said to me, 'It's too bad all the frauds ruined it for legitimate people.' That is the problem in a
nutshell-there is no 'all the 24 A JOB TO DIE FOR frauds."' The Real Fraud The outrage over
workers' compensation fraud is misdirected at workers when it should be focused on cheating
employers, says Greg Tarpinian, Executive Director of Labor Research Associates, a New York
City-based non-profit research and advocacy organization that provides research and educational
services for trade unions. He reports, "The best evidence from the states that have pursued fraud
and generated detailed records indicates that for every $1 lost in claimant fraud, at least $4 to $5
(and in some states as much as $10) are lost through premium fraud. Premium fraud includes a
number of schemes used by employers to reduce the workers' compensation insurance premiums
by underreporting payroll, misclassifying employees' occupations and misrepresenting their
claims expe- . n27 nence. Both intentional and unintentional underreporting on the employer's
part occurs. One injured worker explained that when he needed a few stitches, his employer told
him, "Just go see your own doctor and bring us the bill." The bill was directly paid from petty
cash, and the injury was not reported." If injuries and illnesses are not reported, they are not paid
for by workers' compensation. One finding from the National Institute of Occupational Safety
and Health (NIOSH) SENSOR program, a collaborative effort with 13 State health departments
to improve occupational health, discovered that state health departments in Michigan, New
Jersey, and Washington State " .... demonstrated gross underutilization of workers' compensation
for occupational illnesses: less than 43 percent of workers with silicosis and only 25 percent of
workers with occupational dermatitis filed for compensation." 29 Dermatitis is one of the most
common work-related illnesses and silicosis is one of the oldest and deadliest. The Institute of
Medicine (part of the congressionally charCHAPTER 2 25 tered National Academy of Sciences)
assembled a panel of experts and published Safe Work in the 21st Century; it reported that as
much as 30 - 60 percent of work related fatalities are not included in workers' compensation
records. 30 These respected and valid studies don't make national news shows yet the dollars at
stake exceed even the highest estimates of workers' compensation fraud. Why? Because the bills
are paid by the injured, the ill, and the taxpayer. For those that have filed for workers'
compensation, benefits are hardly guaranteed. Denying payment is a common ploy by insurance
companies because it is so difficult for sick people to fight. Many patients give up seeking
payment for all or at least some of their bills and pay them directly-to argue over each one is too
difficult. Called "starving them out," this tactic often brings workers and their families-already
suffering from an injury or illness-the added burdens of depression; stress; financial loss or
devastation; divorce; drinking and even suicide. One injured worker was actually told by an
insurer "not to take it personally. It's just part of the game."ll Sue got so mad once at how her
employer's workers' compensation carrier routinely denied her medical bills that she went to
court with a 104 degree fever to show she was sick from the MRSA infection. She says, "Even
the judge was disgusted with how the insurance company dragged me into court again and
again." Sue tries hard to not be bullied by her employer's workers' compensation insurance
company. They attempted to terminate her benefits, but she sued and had them reinstated. She
has gone to about 3 0 hearings in the last two years, once to fight a denial for a $3 .82
prescription. Sue describes her finances this way. "Workers' compensation only pays me a
percentage of my wages to begin with. Then my lawyers take another chunk every two weeks,
there are no cost ofliving increases (I was injured in 1994), bonuses or overtime; 26 A JOB TO
DIE FOR and now they want part of my pension." Although she is eligible, Sue refuses to file
for her pension because the insurance company is allowed to deduct the employer-contributed
part from her compensation check. This is all in addition to repeated starve-out tactics and
denials for medical bill payment. Sue's is not an isolated case. Brian is a 24-year veteran printer
living in Iowa with his wife and three kids. He has permanent neurological damage from solvent
exposure. Some of his symptoms are: confusion, fatigue, insomnia, anxiety and depression,
peripheral vision loss, upper body tremors, headache and swollen eyelids. Permanently disabled
and chemically sensitized, Brian received a lump-sum settlement of $50,000. "One of the
workers' compensation doctors called me a malingerer. I knew this wasn't something good so I
went home and looked it up. It means 'feigning an illness for monetary gain.' So I sent him my
test results that showed a 30% loss of brain function and asked him how $50,000 was worth 30%
of my brain. I made that much every year." Although Brian's medical diagnosis is toxic
encephalopathy, an industrial illness, his workers' compensation claim was denied. He explains,
"When they pay you off, the claim is denied. They denied it all the way - I even went to
California for a PET (positron emission tomography) scan and they denied it. My wife's
insurance company paid, and if they approved my claim, they would have had to reimburse her
carrier for the medical expenses." Brian was never particularly interested in the small print on the
chemicals he worked with day-in and day-out for over two decades. He said, "It was just part of
my job. If you're a painter, you work around paint. If you're a printer, you work around solvents.
We all used it that way, twice a day for 15 minutes each time. I didn't know it would cost me
30% of my brain. I am a lot smarter now with 30% less of my brain." In Oregon, Ernie
Delmazzo also learned about workplace CHAPTER 2 27 safety and health the hard way. For ten
weeks, he drove a truck 1,300 to 1,800 miles each week. He describes the drive like "riding a
mechanical bull, being bounced forward and backward for 8 to 14 hours a day." The suspension
was shot but the truck rental company gave his employer a great rate on the lease. When an MRI
was done four months later, delayed by a claim denial, Ernie's doctors recommended immediate
surgery on his neck. They said any fall or slip could cause him to become a quadriplegic. Even
so, it took two years and two months to get surgery, delayed by a second claim denial. Ernie
says, "If I ever get in a car accident, the car insurer could deny the claim saying it's work-related.
The workers' compensation insurer would probably also deny the claim because the injury "·ould
be old and partially related to a car accident. So, taxpayers will pay and I could end up penniless
and paralyzed." In his current state, Ernie is considered 21 % disabled. For his disability, he
received a lifetime benefit of $8,500. At one point, it took seven months before he received any
wage replacement and over a year before his doctors were paid. Ernie's treatment so outraged
him that he co-founded Injured Workers' Alliance, a grassroots organization dedicated to
educating the public, helping injured workers and improving the workers' compensation system.
Its website, www.injuredworker.org is a great place for an injured or ill worker to begin helping
themselves. Even health care workers are not immune from workplace injuries and illnesses.
After twenty years in nursing, Angela went into a storage room during a transplant operation for
supplies, and had to reach over six big nitrogen containers and a box on the floor to get them.
She fell, hit her head, herniated three discs in her neck, and tore her rotator cuff and a bicep
tendon. The self-insured, Florida hospital she worked for did not compensate her for the first six
weeks she could not work. They 28 A JOB TO DIE FOR also did not compensate her six months
later when she was declared permanently disabled. As a single mother with two kids in college,
Angela could not afford to lose her paychecks. Finally, Angela accepted $14,000 in back pay
when she was owed $24,000. By then, she was desperate. She lost her house, $20,000 in equity,
and her car. Eventually, Angela had to move back in with her parents. She explained, "At 4 7
years old, I had to live with my parents for a year. I was ashamed to tell them. It was so
demeaning, even though they were wonderful." At one point, Angela was so depressed she
became suicidal. She explained, "I would probably be dead if not for my lawyer. You have to
fight for everything. I am into this three-years now, and if I start to think about it, I cry. It is so
frustrating. I am doing better but I have to rebuild entirely." No sane person voluntarily takes
these torturous paths looking for quick and easy financial gain. There is no incentive for it,
financial or otherwise. Exclusive Remedy Workers' compensation is hardly the gold mine
insurers portray it as. Fat lawsuits and big settlements are usually completely out of the question.
"When I tell distraught families who just lost someone in a workplace fatality that they cannot
sue the employer, they are shocked. Sometimes it takes attorneys to tell them the same thing until
they believe it," says Ron Hayes, founder of Families in Grief Hold Together (The FIGHT
Project). "I've had families go to three or four attorneys until they would accept it. It depends on
how angry they are." The National Academy of Social Insurance, a private, nonprofit, nonpartisan resource center explains the workers' compensation arrangement this way: "Under the
exclusive remedy concept, the worker accepts workers' compensation as payment in full, without
recourse to CHAPTER 2 29 an additional tort suit. Employers are responsible for benefit
payments as prescribed by workers' compensation laws, thereby ending their liability. "32 In
other words, exclusive remedy safeguards employers from large punitive awards but impedes
justice in the many cases that might be better served in court. The bottom line is that in all but
the most willfully negligent circumstances, injured and ill workers cannot sue their employer for
making them injured or ill. Discussing exclusive remedy in an online article, the law firm of
Boxer & Gerson explained a California case this way: "The survivors of three workers killed by
the Tosco refinery explosion were awarded a total of $21 million in damages. The workers were
not employees of Tosco but of a subcontractor at the site; thus they had the right to sue Tosco for
negligence. In contrast, Steve Duncan was a Tosco employee. He survived by jumping off the
tower while ablaze from the blast. His sole remedy is workers' compensation. As a result of
falling some 60 feet, Duncan broke almost every bone in his body. He has had 24 surgeries to
date, numerous skin grafts, and amputation of his fingers and a thumb on one hand. He is
confined to a wheelchair; and has numerous metal pins sticking out from his knee and thigh. He
was earning more than $1,000 per week. Now, he gets $490 a week in temporary disability
benefits. Even if he is totally, permanently disabled, this is the most he will ever get-no cost of
living raise and no lump sum payment. If he is found to be less than 100% permanently disabledeven if marginally less, such as 99.75% disabled-he will receive just $230 week in permanent
disability benefits-and not for life, but for a finite period of time. 33 Hayes explains, "In a
handful of states, there are certain exceptions that let people sue, such as when a person behaves
criminally. But usually, they cannot sue their direct employer. Instead, they have to sue other
employers that were involved (like on a multi-employer construction site) or they can sue 30 A
}OB TO DIE FOR under product liability, like when someone killed by a drill rig sues the
manufacturer of the equipment rather than the employer who did not maintain it or train workers
on it." "But," cautions Ron, "what people don't realize is that if they win these lawsuits, they then
have to return all money received under workers' compensation because winning the suit will
actually prove someone else was at fault. So here are these families that fight to win in court and
then they discover that of any award they received, they have to pay the lawyers 30-40% off the
top, return any workers' compensation they have received back to the insurance company
(sometimes a lump sum of $20,000 or more) and they won't receive any more payments under
workers' compensation. The employer's insurance company actually ends up getting their money
back." Ron describes the whole mess, saying "It's like the lawyers need to hire economists to
figure out if the families will end up with anything." A frustrated medical doctor vented to her
local newspaper, writing not about the struggle to heal but about the battle that forces many of
her patients to seek legal help. Letter published in "The Oklahoman," March 12, 2000: To the
Editor: I've worked for the past nine years as the "company doctor" for many businesses in
Oklahoma. In my experience, 90 to 95 percent of workers simply want to get well and get back
to work. They are frightened of retribution and loss of their jobs. Many times they do lose their
jobs right after they return to full duty. This is supposed to be illegal, but it happens every day.
I've fought with companies to get adequate care for these people; it's an uphill battle. Very few
start with an attorney. Here is why they go to an attorney with a workers' compensation injury. •
They don't receive their pay for a month or more and no one CHAPTER 2 31 at the company
"knows anything about it." • They are doing light duty, the supervisor refuses to follow the
restrictions and the company won't enforce it. • The supervisor and other employees are allowed
to harass and ridicule the employee who is on light duty. • They are refused the treatment their
doctor recommends. It's sad when someone had worked for a company for 20 years with
excellent reviews but becomes a pariah when injured. Wise up, governor. Some companies care
nothing about the Oklahomans who work for them. 34 -Melissa Smith-Horn The flip side of the
exclusive remedy coin is that workers are paid even if an injury was partially their fault. If a
person missteps and falls off a ladder, for instance, he or she is still compensated. The exclusive
remedy trade-off works for many short duration injuries and illnesses where the system achieves
the goal of prompt compensation without lawsuits. For most seriously injured and ill workers,
however, the system does not work fairly. After lengthy investigation, Executive Director Greg
Tarpinian from Labor Research Associates concludes, "The presumption of widespread
malingering and dishonesty undercuts any meaningful discussion of the adequacy of benefits and
provides a convenient response for those opposed to the benefit increases that are so critically
needed in many states. Until the misplaced focus on claimant fraud is overcome, district
attorneys will continue to fry the small fish while the big fish go free, and the voting public will
remain distracted by anecdotes. The emphasis on fraud and costs also distracts the public and
lawmakers from the workplace hazards and flagrant safety violations that are the real cause of
the problem of worker injuries and workers' compensation costs."35 *** "There are things that
can be done better," says industrial 32 A JOB TO DIE FOR hygienist Jason Gunnett. He
suggests, "Employers are better off taking a proactive approach and controlling workplace
hazards instead of blaming employees after accidents happen. By focusing on prevention-things
like hazard identification, safety controls, and training-companies reduce their exposure. Most
importantly, proactive safety programs focus on risk-they look ahead to prevent accidents instead
of looking back." He continues, "I don't believe we'll ever eliminate all workers' compensation
fraud, but if an employer controls hazards and sets guidelines, workers will have no structured
basis for a fraudulent case. Some employers don't even investigate accidents but they shouldthey should take it one step further and investigate near misses to make every attempt to avoid
accidents in the first place. Employers without structured safety programs like these will have
higher workers' compensation rates." The painful toll of work-related illnesses and injuries is
beyond measure. For injured and ill workers, it has become acceptable to assume guilt until
proven innocent, burdening them with an indignity that is cruel, chronic and unjust. It is wrong
to judge and penalize entire populations for the failings of a few. That is stereotyping. The image
of fraudulent malingerers, while appropriate for a small minority, does not reflect the reality of
post-injury/illness life for more than 98% of workers' compensation claimants. The injured
worker stigma not only harms injured and ill workers further, it damages the nation by obscuring
the subject of occupational health and safety and hindering meaningful public discussion about
serious problems in the workers' compensation system. Because there is no national regulation of
workers' compensation, each state runs its own program. Without enforceable guidelines to keep
the playing field fair and level, states compete for new business by pushing the overhead costs of
workers' compensation lower and lower, even advertising their rates to draw new industry.
Likewise, the insurance industry manages claims under a microCHAPTER 2 33 scope to
increase profits. The result: today's workers' compensation system is nothing more than a
manipulative business expense. The Other America The classic 'American Dream' rests on the
dignity and pride of being able to make something of oneself. We ask our children "What do you
want to be when you grow up?" because we believe that, with hard work, they can be whatever
they want to be. We don't tell them that if they get injured or ill while pursuing that dream, all
bets are off. In addition to the physical pain, financial hardship and the loss of their self-image as
self-sufficient members of their families and society, injured and ill workers are essentially
discarded. They are outcasts. With the exception of the elderly and young, America shows little
mercy for those who cannot work, those "permanently disabled" from a workplace injury or
illness. In June of 2000, at a chapter meeting of the Pennsylvania Federation of Injured Workers,
an announcement was made concerning an upcoming Labor Day parade. The local chapter
president thought a float in the parade would raise awareness of the plight of injured workers.
The room fell silent when he asked for volunteers; only proud people march in parades. The
insurance industry's campaign to root out fraud had been heard. Tim Wagner was Executive
Director of the Pennsylvania Federation of Injured Workers for five years, until it was forced to
close its doors due to lack of funding. He described the indignity this way. "The America you
knew before you were injured is not the America you know afterwards. The rights and privileges
people think they have before they are injured dissolves afterwards. You go from being a
productive member of society to being seen and treated as a bum." When he took the
organization's lead in 1995, Tim was an ordained Lutheran minister. His decision cost him his
ordination and half his salary. About his choice, he says, "This is the hardest job I've ever done.
Insurers have done a good job of 34 A ]OB TO DIE FOR showing injured workers as lazy
malingerers. The fraud image is so powerful that even the unions and the workers themselves
buy into it. People suspect their co-workers of milking the system and this pits employers and
employees together against the injured worker." Tim explains, "Most injured workers enter the
workers' compensation system reluctantly but they have no other choice. Co-workers become
pawns of the insurance industry when they don't support the injured. It's divide and conquer. "
Most people who work would not voluntarily assume the indignity, isolation and stigma of
unemployment. Recipients of workers' compensation are people who were working in the first
place. It is illogical to assume they are all seeking to scam the system. Sue did not work for three
weeks with a broken neck because it was easy to leave her job, because she wanted to stay home
and watch Oprah. She still says "If I could go to work for even just five minutes a day, I would
do it." Today, her self-image reflects the new reality of her life-she can no longer do the things
she wants to do. Sue started counseling to help handle the grief and to learn to cope, paying for it
herself. From her daughter's poem, more "Tears ... " Although disabled through her injury; she
seeks truth and justice; Searching for the answer that has been denied her. The people who were
set to help her further her decline deeper; The workers' compensation group fuels lies and deceit
here. Six years after her neck broke, a school bus lightly rearended their car as Sue sat inside
with her son. While her son barely moved, Sue's brittle neck fractured immediately. Her current
condition is so severe that doctors can only prescribe "pain management"- another way of saying,
"There is nothing we can do for you." Instead of healing others, Sue's job now is to get through
each day with the constant pain of a fracCHAPTER 2 35 tured neck and several loose, broken
bone pieces floating nearby. "Not to mention managing my claim," she says, "which is a full
time job in itself." Living with a fractured neck, Sue's pain management prescription is no
aspirin. Her pills cost $180 per month. Again, the workers' compensation insurance company is
trying to terminate her benefits claiming they are not responsible for her current condition since
it was the bus that caused her neck to fracture. In response to this recent round of 'starve out'
tactics, Sue paid for the $180 dollar prescription herself until she could no longer afford it.
Fuming, she grits out, "It is their responsibility. Normal people don't fracture their necks at 5miles-per-hour but mine is so bad that if someone slapped me on the back, it could break." When
Sue tells her local pharmacies that the prescription is related to a workers' compensation claim,
they ask her who will pay. Sue says, "They laugh at me when I tell them who the insurance
company is. I can't even get this prescription filled unless I pay for it myself because the
pharmacies know that the bill will be denied." At only 13-years-old, Sue's daughter has already
seen "the other America." In "Tears," she wrestles with what to believe after seeing how her
mother is treated. "Reaching out to others, who may help or not, to hear her story upon deaf ears;
The people who were elected in by the people; turning their noses. The constitution reads, "We
the People" which I assumed was written for the people. I come to find those words have no
meaning, they are in jest for no purposes. Our lawmakers forgot about the Constitution of the
United States; They choose to represent those of great wealth. 36 A JOB TO DIE FOR Our
forefathers stood for equal rights of the common man; Not to buckle into Corporations with their
non-ethical stealth. After watching her mother's slow physical decay, witnessing the disrespect of
the system, living with the hardship of having a disabled mom, and sharing the family's financial
loss, Sue's daughter closes "Tears" with mercy and hope. I pray each evening to bring one day
free of pain for my mother; To pray for these immoral people's souls and ask that they be
forgiven. I pray that someone will listen to the pain, agony, frustration of other workers; That the
Lord above will answer my prayers and be
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