Dallas attorney Bill Minick (Photo credit Dylan Hollingsworth for ProPublica)
Today’s post comes from guest author Hayes Jernigan, from The Jernigan Law Firm.
Texas and Oklahoma have both adopted an “opt-out” system for Workers’ Compensation. ProPublica along with NPR recently published an in-depth look at the results in these two states. Under this system, employers can opt-out of state mandated workers’ compensation insurance by creating their own policy for injured workers. These employer-written policies give employers 100% control over the terms, the benefits, and even settlements.
Specifically, ProPublica and NPR found that these employer-created policies generally have strict 24-hour reporting requirements or even require an injury to be reported by the end of a shift. This means, if an employee does not report their injury within their shift, or within 24 hours, they are prevented from bringing a claim at all. Period. End of discussion. Employers can also dictate how much benefits will be paid and some employers have capped death benefits for employees who are killed at work at $250,000. Whereas under the State Workers’ Compensation system, if a deceased worker leaves behind minor children, they will continue to receive benefits until they turn 18 (which could easily end up being well over $250,000 when you factor in lost wages until the worker would have been 65). This is potentially detrimental to a young widow or widower who is left with very young children.
This morning we tweeted a recent ABC news article that a worker was killed when he fell at a construction site in Charlotte. I’d hate to think that his or her family would be limited to recovering only $250,000 in the event the worker left behind dependent family members and young children. Money can’t begin to replace someone who is lost to us too early from an accident at work, but $250,000 would hardly cover a lifetime of income that the family will lose, especially if young children are left behind.
To read more on how the Opt-Out system is affecting injured workers in Texas and Oklahoma, go to: ProPublica: Inside Corporate America’s Campaign to Ditch Workers’ Comp.
Wisconsin is not alone. While Wisconsin is facing a proposed dismantling of the basic structure of its incredibly efficient worker’s compensation program, based on the Governor’s Budget proposal, the workers in Illinois are also facing major legislative problems. As part of a series of articles in ProPublica and NPR, which discuss the overall dwindling of worker’s compensation benefits, a recent story discusses the worker’s compensation deforms currently proposed in Illinois.
One of the foremost experts on worker’s compensation, Professor John Burton, testified at an Illinois legislative hearing on the issue. Of note is that Burton’s national research generally shows that whenever and wherever the worker’s compensation eligibility standards are tightened the Social Security Disability and Medicare/Medicaid rolls go up in virtual direct proportion. Legislatures should be wary off unintended consequences on the taxpayers of alleged worker’s compensation “reforms.”
I recently wrote an article in the national magazine for the Worker’s Injury Law Advocacy Group (WILG), the Worker’s First Watch, Fall 2013 reviewing the worker’s compensation resources research report indicating that the worker’s compensation industry is extremely profitable. I began representing injured workers in 1976. It seems every year since then worker’s compensation insurance carriers have complained they are not making profits and the culprit responsible is increased benefits paid to workers. In fact, over the last 20 years the insurance industry has been profitable in 16 of 19 years and broke even in one year. Several factors account for this profitability, including worker’s compensation insurance carriers successfully pursuing deregulation and “reform” measures to restrict eligibility.
The net result of increasingly restrictive rules for compensability in many State worker’s compensation systems as a result of “reform” resulted in many workers with disabilities caused by work who did not receive worker’s compensation benefits.
The general trend since the early 1990s has been to restrict coverage through State statutory and administrative “reform”. Many workers face lengthy litigation and frustration. More restrictive regulations may preclude claims where the worker lacks “objective” medical evidence for his injury, or is unable to medically document persistent pain, or has a disease resulting from multiple causation that cannot be distinguished from workplace disease, or has job stress related disorders. One significant problem is that many injured workers fail to file for benefits. (For those of us in the trenches daily, these pose obstacles to compensability.) Among the many reasons for failure to file are:
- Ignorance of worker’s compensation and eligibility.
- Ignorance of the work-relatedness of the condition. (Many workers know they suffer an impairment but do not know the health condition is caused by work.)
- Reimbursement for medical care or Short Term Disability benefits available. (Many workers use Short Term Disability or group medical insurance rather than worker’s comp.)
- Belief that the injury is lacking in sufficient severity.
- Many workers fear job loss or other forms of retaliation, who do not want to report a condition as work-related.
- Workers do not want to be perceived as complainers or careless.
- Deciding not to file based on the negative experience of co-workers.
- Fear of the stigma associated with being a worker’s compensation claimant. (Much of this stems from the intense focus on fraud perpetrated by the insurance industry, resulting in increased levels of stigmatization, decreasing the likelihood injured workers will file for benefits.)
- Pressure from co-workers on safety incentive programs. (These programs, sometimes called “Safety Bingo” create incentives not to report.)
Those of us who have hearings daily that involve the non-reporting of an injury, or significant time delay between the occurrence of an injury and the reporting of an injury, can refer to the above list for some ammunition on the “non-filing” or “late filing” issues.
Immigration reform is a continual and vexing issue in Washington. While politicians, lobbyists, and service organizations grapple with potential resolutions, there is no disputing the existence of illegal immigrants working for employers in our country. And when there are employees working, work injuries happen. This may be especially true with the undocumented population who may be more susceptible to significant injuries because many perform more dangerous or hazardous jobs that other may not accept. For further information, see Do Immigrants Work in Riskier Jobs? and the CDC’s report on work-related injury deaths among Hispanics.
…excluding illegal immigrants from worker’s compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants.
When injured, are these undocumented workers eligible for worker’s compensation? Some harshly argue that these workers should receive no benefits, as they are not working legally in the country. However, one of the underlying pillars of worker’s compensation is that the expense of workplace injuries (covered by insurance) should be placed on the employers who profit from the workers’ labors. Additionally, excluding illegal immigrants from worker’s compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants—a practice that is against federal law.
The worker’s compensation laws in our country do not have a definitive answer to this question—though the trend is toward coverage of undocumented workers. Many states do Continue reading
Basking in the glow of his evangelical-inspired victory in South Carolina’s Republican presidential primary, Newt Gingrich is trying to unify his disparate assembly of Tea Party malcontents, religious moralists, anti-immigrant reactionaries, and most significantly, “anti-government encroachment” fanatics.
Before his candidacy gains any more momentum, we should look back and reflect on the havoc his positions would create in our current State systems. Governor Rick Perry invited Gingrich to speak to the Republican Governors Association after last November’s Republican landslide. Gingrich decried the “leftist political system that has been dominating America since 1932.” Obviously, his attack is leveled at the New Deal, Great Society systems that provide benefits (he calls them entitlements) for so many– Social Security Disability, Medicare, Equal Rights legislation, etc.
More significantly for the worker’s compensation system, he indicated in his 12 Step Program (sound familiar) that he wanted to replace State’s worker’s compensation programs. In an obvious attack on worker’s compensation attorneys, his plan was to “replace litigation-focused worker’s compensation with a rehabilitation and capabilities focused program that maximizes the speed of helping people medically, and focuses on retraining and focuses on what they can do rather than what they can’t do.”
While the medical end of this aim is laudable, Wisconsin’s system (and many others) currently does focus on retraining and what workers can do following their injury. Wisconsin’s vocational rehabilitation Continue reading
Recent news articles suggest that several states are in the throes of workers’ compensation reform, with legislators attempting to create a business-friendly environment in their state—on the backs of injured workers.
The main focus of any workers’ compensation system should be to restore the earning capacity that a worker held before suffering a work injury.
One victim of these efforts at workers’ compensation reform is the reduction or evisceration of vocational rehabilitation.
The main focus of any workers’ compensation system should be to restore the earning capacity that a worker held before suffering a work injury. As a public policy, the hope is that an injured worker – after reaching their healing plateau – can return to their time of injury employer, earning similar wages. Continue reading