October 23, 2014 Celeste Monforton, DrPH, MPH 7Comment

Exclusions, barriers, bans and hurdles describe many injured workers’ experiences with workers’ compensation. A system that was supposed to assist them and provide streamlined procedures to recoup medical costs and lost wages has become a nightmare for individuals who’ve been injured on-the-job. A new policy brief by the National Economic & Social Rights Initiative (NESRI) describes seven destructive trends in workers’ compensation laws which reflect the attitude of many in state legislatures who “see workers’ comp as an unnecessary cost for business rather than a critical health care and social insurance program.” NESRI’s list them as the following:

  • More workers’ health conditions are excluded from coverage (e.g., some state laws explicitly disallow claims for hearing loss, repetitive motion injuries and back disease.)
  • Increased procedural barriers to workers claims (i.e., originally designed to be a “no fault” system, most workers have to retain lawyers and their own medical experts to support their claims.)
  • Reduced income support for disabled workers (e.g., a fixed number of weeks of pay for disabled workers, regardless of the individual’s condition or advice from a physician.)
  • More employer control over workers’ medical treatment (e.g., workers are forced to use physicians selected by the employer or insurer who have a vested interest in saving money.)
  • End to universal mandates that employers carry workers’ compensation insurance (e.g., in 2013, Oklahoma joined Texas in allowing employers to “opt out” of carrying work comp insurance.)
  • Bans on workers suing insurers for dishonest and misleading practices by insurers.
  • Reduced access to attorneys (e.g., cutting the fees that an attorney can charge for handling a worker’s case.)

None of this is new to public health researchers and organizations who’ve studied workers’ experiences with the workers’ compensation system (e.g., here, here, here, here, here, here.) As Les Boden, PhD wrote in a 2012 article in the American Journal of Industrial Medicine:

“The sorry and declining state of workers’ compensation in the U.S. is largely the consequence of the political power of employers and insurers, bolstered by their ability to frame the political debate. Employer costs per $100 of covered wages declined from $2.18 in 1989 to $1.33 in 2009, reflecting both legal restrictions on workers’ compensation and declining reported injury rates. Yet even today the debate in the states is about excessive employer costs and employers’ threats to move to states (or countries) with lower workers’ compensation costs. The simplest way to reduce costs is to reduce the amount of benefits paid to workers, through raising barriers to approval of claims or reducing the benefits in claims that are approved.”

The impact of the destructive trends described in NESRI’s brief are made real through the voices of injured workers. Robert Hudson, 61, was working for the school district in Addison, New York when he was exposed to muriatic acid while cleaning a swimming pool. He’d never cleaned a pool before and wasn’t trained on how to do it safely. “I was a company man and I wanted to get the job done,” explained Hudson.

Injuries to his respiratory system were severe. Hudson wanted to continue working, but could no longer climb ladders or the other physical work required by the job. His doctor says he is permanently disabled. He used his paid sick leave and personal leave for three months while waiting for the workers compensation system to make a decision about his case. It was seven months later when he received his first payment from work comp for lost wages. His weekly payment was $202.36 compared to the $400 he used to earn. In a report prepared by the New York Committee for Occupational Safety and Health (NYCOSH), Hudson describes his frustration with the workers’ comp system:

“They keep sending me to independent medical examiners to prove my condition is not what my doctors are saying it is. I am being badgered. The procedures are flawed. My life as it was is ended now. I can never work again. I am tired of being screwed by all these people. They don’t have to live with the constant worry, and coughing their brains out all night long…”

In 2009, the American Public Health Association (APHA) adopted a policy statement calling for reforms to the workers’ compensation system. Not the pro-business “reforms” that create hurdles for injured workers, but improvements to create a safety net for workers and their families. Among others, APHA proposes a national system with

  • uniform coverage of health care and adequate loss-of-earnings benefits for all occupational injuries and illnesses;
  • health care for injured workers provided by providers independent of employer involvement and insurance industry control;
  • health care providers removed from the responsibility of determining eligibility for benefits;
  • an emphasis on prevention of injury and illness, and rehabilitation of those unable to return to work, and
  • mandatory root cause investigation requirements for all occupational injuries and illnesses.

The US workers’ compensation system—dating back to Wisconsin’s law in 1911—stems from a bargain between workers and employers. Workers who are injured or made ill from hazards at work would receive medical care and payment of lost wages while they recover. In exchange, employers could not be sued by workers for the harm the employer caused. The destructive trends profiled by NESRI, however, illustrate that decades of “reforms” make the bargain no longer a good deal for injured workers.

7 thoughts on “Destructive trends in workers’ compensation

  1. So if Oklahoma and Texas allow employers to opt out, does this mean they can now be sued by the worker for damages related to their work related injuries?

  2. Technically, in Texas an injured worker could hire an attorney to sue their employer. in reality, for the vast majority of work comp cases, the total medical cost and lost-wages being sought by the worker will not be high enough to make it worth the attorney’s time. The State puts a cap at 25% of the award.

  3. Wow, that’s something. I work with WCB claimants in Canada. Dr. Monforton has pretty much just described our system, which has its flaws, but I think many workers don’t even notice they’ve been on WCB. My employer pays sickness & accident benefits until WCB approves the claim, and then adjusts the difference.

    The other thing is that here (at least in Alberta), the WCB is required to hold investments equal to current annual liability + 15% (I think it’s 15…). Because they’ve done well at managing these billions of dollars, they have paid large (hundreds of thousands, in our case) rebates to employers in the past, and again this year. Employers are supposed to invest those rebates in Heath & Safety programs, and I think many of them do.

    Nevertheless, we still have employers who tell their workers “if you get hurt, you’re out of a job”. I assume this is because they’re completely ignorant about how WCB works. We had an information program 20 years ago to explain to workers how WCB works and most importantly who pays for it (mostly the employer).

  4. If you are a worker, and get hurt at work,
    Better hope that it’s minor, before the caseworkers smirk,

    They don’t listen to your doctor, or any specialists,
    Their doctors know more, that they insist,

    They refuse you the care, and time needed to heal,
    And think that your injury, is not a big deal,

    A short time will pass, then the caseworker jerk,
    Gives you a call, wearing the WCB smirk,

    They dreamed all night long, about calling you in,
    So they can just give you, that shit eating grin,

    They tell you your fine, and get back to work,
    Those smug faced caseworkers, cause even worse hurt,

    Then you go so long, so many years,
    Without any pay, you lay there in tears,

    The depression is real, and that you can’t hide,
    That last little push, can cause suicide,

    But that doesn’t matter, to the compensation board,
    It’s only the money, that they plan to hoard,

    They fight and they fuss, and they tell you a lie,
    All in their game, so they can deny,

    The smug face caseworker, ruins your life,
    Hoping your nightmare, even hurts your wife,

    It’s time that this changed, that I can say,
    Let us injured workers, deny them their pay!!

                                     By James Mansell.

  5. Some in this world, care for fellow man,
    Some in this world, care and take a stand,
    Some in this world, collect and they hoard,
    Those ones are known, as the workers compensation board…
    Some in this world, get injured at work,
    Some in this world, end up dealing with a jerk,
    Some in this world, hope to someday get well,
    But end up going, through WCB hell,           

    Some in this world, the laws they abide,
    They beg and they plead, WCB throws them aside,
    When the government ignores, and says they won’t help,
    The poor injured worker, let’s out a yelp,
    As they lay there wondering, how to live without pride,
    The poor disabled worker, commits suicide,

                                      By James Mansell

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