Workers Compensation Questions Response

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Read the attached document and answer the following questions.

Prior to reading this chapter, how have you typically reacted upon hearing that someone is off work and receiving workers’ compensation benefits? Why did you feel this way?Has reading this chapter changed your opinion of such individuals in any way? Explain your response.Has this reading changed your interpretation of the term “fraud” as it relates to workers’ compensation? Why or why not?

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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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