Showing posts with label Workers Compensation. Show all posts
Showing posts with label Workers Compensation. Show all posts

Tuesday, January 02, 2007

"Worst Workers Comp Decision I've Ever Seen"

Workers comp receives a lot of complaints. It doesn't adequately compensate workers for loss of wages and ability to work, premiums are too high for some employers, it's often difficult to prove that illnesses are work-related and it precludes workers from suing their employers except in the most extreme cases of employer negligence.

Nevertheless, one of the main advantages of workers comp is that it's supposed to be "no fault." That is, the only thing that matters is if a worker gets hurt on the job, not whether the worker may have been at fault.

That is, until this decision in Ohio.
The Ohio Supreme Court has upheld a KFC franchise’s petition to deny workers’ compensation payments to a teenage boy who was severely burned while cleaning a pressure cooker, raising questions from lawyers and the dissenting judges about the basic no-fault tenet of the state’s workers’ compensation.

The majority in the 5-to-2 decision on Wednesday accepted the argument by the restaurant owner that the boy, David M. Gross, then 16, had voluntarily abandoned his job when he ignored repeated warnings not to boil water in the cooker to clean it. That meant he was not entitled to workers’ compensation payments because he no longer had a job when he was injured, the ruling said.

“This is the worst decision I’ve seen since I’ve been practicing law,” said Philip J. Fulton, a workers’ compensation lawyer and past president of the Ohio Academy of Trial Lawyers. “It changes the whole substance of what workers’ compensation is supposed to be.”

Mr. Gross was working at a Dayton-area KFC on Nov. 26, 2003, when boiling water spewed from a pressure cooker and caused third-degree burns around his hip and groin and second-degree burns on his arms, torso and back. Two co-workers were also burned.

A company investigation found that Mr. Gross had ignored warnings in the employee handbook and on the cooker as well as repeated warnings by two co-workers and a supervisor.
As usual, the problem isn't so much in the specific case, where the worker was clearly violating safety procedures, even though it violates the basis of Workers Comp law over the past century. The bigger problem is almost every other case where employers instinctively and automatically blame workers for accidents, claiming that they weren't following procedures. We see this in almost every article about a workplace accident, where employers "can't understand" how the accident happened because the company has a "great safety program" and the worker "wasn't following proper procedures."

We see it in small incidents adn we see it in large catastrophes. We even saw BP blaming workers for the 2005 BP Texas City explosion that killed 15 workers. Several workers were fired following the incident, accused of not following proper procedures. Of course, what soon emerged was the fact that valves, gauges and other equipment weren't functioning properly, that management and workers knew about the equipment problems, that some faulty equipment had been identified years before by OSHA which had recommended its removal, that company officials all the way to the top of the giant company were aware of safety problems at the refinery and on and on.

The no-fault nature of workers comp is one of the few benefits of the system that still remain. If that goes, if employers can get out of paying workers comp by simply claiming that the employee wasn't following proper procedures, then what's the point?

Related Stories

Tuesday, October 24, 2006

Chronic Pain, A Hand Like A Claw, And The Lowest Injury & Illness Rates "On Record"

Secretary of Labor Elaine Chao is happy as a clam over a recent Bureau of Labor Statistics report that the rate of injuries and illnesses have gone down for the third straight year from to 4.8 cases per 100 workers in 2004 to 4.6 cases per 100 workers in 2005.

According to Chao, all credit goes to
1) compliance assistance; 2) health and safety partnerships with labor, and; 3) targeted, aggressive enforcement against bad actors. (emphasis added)
Now I can't quite tell whether she's joking, or suffering from the same delusional disease affecting the Pentagon, but "health and safety partnerships with labor?" Puleeeze!

Oh, and Elaine, you don't get a reduction in national injury and illnesses number by going after a few "bad actors." You also need to go after all the other "normal actors" who cut a few corners here, rush a few jobs there, and ignore ergonomics and chemical hazards. Oh, and if you really want to address a signficant number of workplace injuries and illnesses, you might want to depend a bit less on the "compliance assistance," and issue a few new standards that address issues like ergonomics and workplace violence which make up for hundreds of thousands of injuries every year.

If the numbers are accurate, this is good news. But, of course, all of this assumes that we even believe these numbers -- and with cases of employers being caught cheating, with "behavioral" incentive programs that discourage employees from reporting injuries and illnesses, one could be forgiven for being a tad bit skeptical.

But most important, these are only numbers, statistics, millions of them. And as famed occupational physician Irving Selikoff once said, “statistics are human beings with the tears wiped away.”

What tears are we talking about? Here's one tragic example, and this one didn't even make it into Chao's statistics:
He lost his apartment two years ago, after losing his job. He lost his job after falling off scaffolding in an unacknowledged industrial accident. The company lawyer does not answer his phone calls. Now he has chronic pain, a hand like a claw and a bed in the homeless shelter.

My patient likes to talk about the apartment he used to have, and the honest satisfactions of a home. He liked taking his shower after work, watching his TV. He had a girlfriend who tidied the place from time to time. He took the bus to and from work and said that whenever someone was missing bus fare, he would reach into a pocket and supply it. It felt good, like buying everyone a round. He was not a drinker, but altruism was something he enjoyed.

He especially liked his apartment key. But no job, no key. At first, he slept in a condemned building; it gave comfort, and the illusion of a home: there were doors to walk through. After the building was demolished, he came to the mental health clinic. He had all the profound symptoms of depression one would expect. He understood that antidepressants take weeks to work, and dutifully accepted that fact. He was willing to be patient.
He got thrown out of the shelter, and built himself a nice lean-to in the woods, "using tree stumps and branches, and his one good arm."
He says he lies in it and can see the stars in the roofless sky. There is no heat or electricity, of course, and the house is not structurally safe, but he doesn’t mind. He looks up, and hours pass. In the dark, lying on the floor looking up, he begins to feel the absence of grief, of anger. He feels the blessing of no feelings at all.

The medication is still not working. It won’t work, when his need is for a key. He has begun to talk about train tracks and the uselessness of life. He says one day he may not return to the clinic. He won’t tell me where his house in the woods is, though for now he continues to visit it. It offers respite from the anxiety, rage and heartbreak he faces in the shelter.

Feeling nothing, he says thoughtfully, is almost like feeling peace.
4.6 per 100. I feel much better now.

Tuesday, September 26, 2006

Workers Comp: A Colossal Failure

Guess what? Workers Comp doesn't work. And if you don't believe me, go read this:

A new report released today by the consumer rights group, Center for Justice & Democracy (CJ&D), finds that workers’ compensation programs throughout the country have been devastating for injured workers, leaving them to contend with an adversarial bureaucracy and inadequate benefits that render many destitute. The report, “Workers’ Compensation – A Cautionary Tale,” calls the workers’ compensation program a “colossal failure.” It also notes, “[t]he real winners are insurance companies, which continue to boast record profits as workers’ benefits are declining.”
Full report(s) are here:

News Release: Workers Compensation - A Cautionary Tale (September 20, 2006)(PDF)Click here for national report (PDF)

State Reports (PDF):

Thursday, September 21, 2006

"Repugnant" Companies That Deny Workers Comp for Undocumented Workers

Yet another in a growing number of disgusting news stories about how insurance companies are trying to get out of paying workers comp for injured undocumented workers. It's not enough that they do the most dangerous work in the country, for low pay and suffer a higher and climbing rate of injuries and fatalities than non-immigrant workers. Let's screw them when they get hurt as well.

This article by Liz Chandler in the Raleigh News and Observer tells the story of Francisco Ruiz who, after losing his job in Mexico, crossed over the border to the United States and got a job with the Belk Masonry Co. which offered him $300 a week to work as a laborer for a masonry crew. On Oct. 7, 1997, a crane hoisting Ruiz along with a load of bricks collapsed, throwing him to the ground where the bricks rained down on him.
He broke a rib and injured a kidney, and his right lung collapsed. He also hit his head on the floor, severely injuring his brain's frontal lobe, which controls language, memory and motor function.

Ruiz was in a coma, able to breathe only with a ventilator.

His younger brother, Jose, left his wife, two young children and his job in Mexico and rushed to Charlotte.

Ruiz's wife followed, with a temporary pass to enter the country, leaving her three children behind. When she arrived at Carolinas Medical Center, she found the Virgin of Guadalupe medal in her husband's hand.

Nurses were hoping for a miracle, but at Belk Masonry, a counterattack had begun.

The Companion Property & Casualty Insurance Co. paid his initial medical bills, but adjusters wanted to know all about Francisco Ruiz. When they discovered his illegal work status, they rejected his claim.

The law in North Carolina, as in most states, says that illegal immigrants who are hurt on the job are entitled to compensation. Companies, the law says, must pay injury benefits to "every person engaged in employment ... whether lawfully or unlawfully employed."

But officials at Companion Property & Casualty questioned the law's intent. Why should they pay an alien who lied about his immigration status to get his job? How could an illegal worker technically be considered an employee?
Ruiz took the company to court and won.
It would be "repugnant," the court said, for a company that benefited from a worker's labor not to pay him for an injury. Whether the worker was illegal didn't matter.
The company appealed and after winning several appeals over five years, the case finally reached the North Carolina Supreme Court which refused to hear Companion's final appeal. Another year to settle and Ruize was finally awarded $438,000.

Just another day's work for Companion.
The company was disappointed but not surprised.

"We're always viewed as the deep pocket," said Companion President Charles Potok. "If you're talking about paying somebody or cutting someone off cold, we typically lose."
Deep pocket? How about the the legal obligation of companies and workers comp insurers to pay the costs of workers' deaths, injuries, medical treatment, lost wages and disabilities. -- whether or not they're "legal."

Related Articles

Tuesday, June 24, 2003

Workers Comp Fraud

The New York Times article that I highlighted in yesterday's posting about the growing crisis in the workers compensation system contained the following paragraph describing some of the causes of the problem
Prices are escalating, government and industry officials said, because of rising medical and legal costs; a recent devastating price war by insurers; and, many insurers and business executives say, a significant amount of fraud.
What kind of fraud you ask? Well, I'm pretty sure that the insurers and business executives are not talking about the most common and expensive type of workers compensation fraud: Employer fraud.

According to a 1998 article, "Fraud in the Workers' Compensation System: Origin and Magnitude"* by Dr. David Michaels, currently at George Washington University,
In states where the relative importance of worker and employer fraud can be compared, it is apparent that the magnitude of employer fraud greatly exceed that of worker fraud.
And what is "employer fraud?"
It's avoiding insurance payments by underreporting payrolls, manipulating injury and claims data to show move favorable claims experience...and improperly using independent contractor status ...to avoid workers compensation insurance..
But if employer fraud is so much more common and costly than worker fraud, why do we always seem to hear anecdotes and television stories about scandals involving workers, allegedly seriously injured on the job, filmed taking out the garbage? Sexier television or is there an ulterior motive? According to Michaels,
Employers and insurance carriers know that the campaigns against worker fraud rarely identify many actual cases of outright fraud, and they save little or no money In fact, they may lose money. Their primary purpose is not to save money. High profile campaigns that focus primarily on worker fraud are actually public relations campaigns to convince the public and legislators of the demonstrably false asssertion that the workers compensation system is rife with worker fraud. Once this occurs:
  • The public and legislators become more accepting of "reforms" that significantly reduce benefits paid to disabled workers; and

  • workers injured on the job become concerned that they will be stigmatized by neighbors and coworkers if they file legitimate compensation claims. To avoid this stigma, injured workers shift the medical costs of their claims to their group health insurance policies and pay the cost of lost wages themselves, through their accrued sick days and vacation leave, and continue to work while injured.
The winners? Insurance carriers who don't have to pay claims, and employers who don't have their premiums raised. The losers? Workers and their families who bear the costs themselves; other workers, because the employer has even less incentive to make the workplace safe, and of course, taxpayers who ultimately end up paying the bills.

Last week I cited Lisa Cullen's article, "Safety Pays, Or Does It?" about how safety doesn't really pay for those who are able to work the system so that workers and society end up paying the real costs of unsafe workplaces.

Legislatures in many states will be seeking to "reform" the workers compensation system in the near future. And they'll be using worker fraud as an excuse. Print out this article and save it for the upcoming battles.

*Occupational Medicine: State of the Art Reviews, Vol 13, No.2, April-June 1998, Philadelphia, Hanley & Belfus, Inc.