The Workers’ Compensation System And Its Impact On Injured Workers

Each year, our workers compensation system in Alabama faces new threats from the insurance industry. In some states, like Texas, the system has been dramatically altered leaving many injured workers unable to recover and return to gainful employment. In Alabama, injured workers with a partial disability that impacts their ability to work are often compensated at an amount below Federal poverty levels. Our state has not increased partial disability payments in over two decades! While benefits to workers are over two decades behind inflation, some of our legislators continue to propose new laws that would cut off other important benefits.

What is the purpose of our workers’ compensation laws? Why were they created? A recent article titled Workers’ Compensation: The System’s Devastating Economic Impact on Workers’ Lives provides an excellent answer:

Workers’ compensation was created for two primary purposes—to provide at least partial compensation for lost wages and to pay for medical treatment and rehabilitation services for workers injured or made ill on the job.

The problem is that our system often fails these purposes. Insurance carriers routinely refuse or delay needed medical care in an effort to save themselves money. Yet, the cost to society of leaving an injured worker unable to recover for an extended period of time is much greater. Constantly, I see denials of medical care that are simply wrong. Is it right for medical care to be refused because the insurance adjuster simply ignores the requests of the treating physician for weeks? Is it right for the insurance carrier to pick a surgeon and then subject all of their surgeon’s recommendations to some anonymous medical reviewer who may not even practice medicine? Or, to deny the requested care repeatedly because of some claim as to missing paperwork that nobody understands?

Because our system does not penalize or prevent insurance carriers from wrongfully or needlessly cutting care and benefits, the entire system is dysfunctional. The first question I am usually asked by injured workers is how quickly they can get back to regular work. Yet, needlessly delaying or denying care frustrates this. That costs the worker and his or her family tremendously. It also costs the rest of us in lost productivity. The article points out the results of allowing insurance carriers to disrupt the important goals of the system:

By compromising workers’ capacity to earn a living, injuries and illnesses unleash a cascade of destructive impacts affecting access to housing and food, stability of relationships, and poverty-related health problems.

It is unconscionable that workers’ compensation places much of the economic burden of occupational injuries and illnesses on workers and their families. This makes workers’ compensation all too often the accomplice, if not direct perpetrator, in pushing workers – especially low wage workers – into debilitating economic insecurity. Injured and ill workers report depleting their savings, sometimes taking out retirement funds or even declaring bankruptcy in their efforts to cope.

All of us need the system to work. Yet, it often does not. I have seen far too many clients who were forced into selling their possessions or declaring bankruptcy after months of begging for basic medical care so they could return to work. What’s more – the long-term trend does not look good:

Because every state has its own workers’ compensation program, there’s a dangerous race to the bottom as states compete to attract businesses by reducing workers’ benefits. In addition, the largely privatized nature of the system guarantees ever-deepening power disparities between workers and employers. This skews the system to primarily represent the interests of employers and the insurance industry, ensuring that discussions on workers’ compensation and reform initiatives are focused on the cost of the system.

Costs are important. If we are going to focus on costs, we should not simply focus on the costs to insurance carriers paying claims. They collect premiums and make a nice profit. A focus on costs should focus on the larger costs to communities of having injured workers unable to return to productive employment, unable to support their families, and unable to get the medical recovery they need.

 

 

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Employees In Nursing Facilities Suffer A High Rate Of Injury

Last month, attorney Leonard Jernigan wrote that “Nursing Facilities Have Higher Incidence Of Workplace Injury Than Construction.” In my practice, I frequently see work-related injuries in both construction and nursing. Although I often handle workers’ compensation and personal injury claims for workers in both industries, I still found the statistics concerning injuries in nursing facilities to be very interesting.

Each of these jobs carries significant safety risks. In construction, workers face a risk of fatal injuries, such as falls from heights and trench collapses. Within the healthcare industry, workers face a number of severe, nonfatal injury risks. According to the Centers for Disease Control (CDC):

Health care workers face a wide range of hazards on the job, including needlestick injuries, back injuries, latex allergy, violence, and stress.

Over the years, I have met and helped many healthcare workers who suffered severe back injuries. Such injuries are far too common. Also, they often result in severe disability. An article in the American Journal of Critical Care, by Deborah X. Brown, highlights the high risk of back injury among healthcare workers and the toll such injuries are producing. According to the article:

Every single day in the United States, 9000 healthcare workers sustain a disabling injury while performing work-related tasks. Disabling back injury and back pain affect 38% of nursing staff.

.  .  .

In the 1998 Bureau of Labor Statistics ranking of the professions at the highest risk for back injury, healthcare workers accounted for 6 of the top 10 positions. An obvious conclusion would be that these injuries are contributing, at least in part, to the current nursing shortage.

Many of the severe and disabling back injuries suffered in nursing facilities result from lifting and moving patients. The risk of significant injury is also greatly increased by the frequent staffing shortages in many facilities. Simple measures by nursing facilities to help their workers could prevent many of these needless injuries.

 

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Is The Debate Concerning Pain Medication In Workers’ Compensation Cases Really Just About Insurance Carriers Saving Money?

The New York Times published an article this weekend titled Pain Pills Add Cost and Delays to Job Injuries. Interestingly, many of the quotes in the article were supplied by individuals associated with workers’ compensation insurance carriers.

Let’s be honest. Are pain medications over supplied to a few injured workers? Absolutely. The opposite is also true — Some severely injured workers have been wrongly denied needed pain medications. In my practice, I have seen both situations. Frankly, I see many more people who need medications or medical care but, instead,  have suffered only denials and delays.

Insurance carriers are now raising the pain medication issue because they see an opportunity to further cut costs. This is NOT the real problem the workers’ compensation system faces. The real issue is the proper provision of health care, itself, to injured workers.

Insurance carriers routinely attempt to shift their responsibility for the medical care of injured workers to already over burdened taxpayer-funded sources. Remember – these insurance carriers are collecting premiums to meet this legal obligations. Yet, we are too often paying their costs. A recent UC Davis study highlights this huge amount of cost shifting concerning work-related accidents and illnesses.

In my practice, I routinely receive calls from injured workers where the insurance carrier has simply refused to provide basic care, such as physical therapy, an MRI request to diagnose the injury, or even a referral to a specialist for an evaluation. If those simple medical treatments are an issue, just think what carriers sometimes do when a doctor recommends costly surgery. In those cases, carriers will often shop for a second opinion that allows them to deny the request.

The larger picture (and real issue) relates to the responsibility for health care in workers’ compensation cases. Here are three quick observations I have on this issue in Alabama:

  1. Too often, injured workers have to fight just to get the basic medical treatment required by Alabama law. This situation exists because insurance carriers first get to choose the treating physician. Second, the carriers can deny or delay care prescribed by that physician and suffer no real penalties under our law. For every worker who gets an attorney and is eventually successful in getting treatment, how many simply give up?
  2. Too often, needless denials and delays by the insurance carriers result in a treatable injury worsening to the point it becomes disabling. How many injured workers could have recovered their health and returned to work by the prompt provision of medical care? Instead, the worker does not receive needed care, gets worse, and ends up requiring long-term pain medications.
  3. Too often, insurance carriers try to completely avoid any medical costs by simply sending the injured worker to a doctor who will release the person despite evidence of continued problems that could be treated. This situation happens in Alabama all too frequently. How many injured people are released by the comp doctor without needed care and simply end up getting pain medications from their personal physician?

 

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Work Related Injuries and Illnesses Present A Huge Cost To Society

A recent study calculates that work related injuries and illnesses cost the United States at least $250 billion a year. The Centers for Disease Control (CDC) notes that this cost is greater than the individual cost of other major health diseases like cancer, stroke, and diabetes. Of course, this begs the question – Shouldn’t we focus our efforts on prevention in this area just as we do with these other terrible health problems?

Where is the priority for preventing these workplace injuries and illnesses? The answer to dramatically reducing the number of injuries is simple – increased safety. In my workers’ compensation practice, it is far too common to see injuries needlessly result because the employer failed to have a safety plan or failed to follow their safety plan. I have written on many occasions about issues surrounding workplace safety. I have also written about the lack of corporate/employer safety incentives in Alabama’s Workers’ Compensation Act. The Act penalizes workers for certain unsafe conduct. Yet, it does nothing to either penalize or encourage employers in the area of safety.

Increased safety, that is how you prevent many injury costs. How can you reduce long-term costs if an injury does occur? Can we reduce the long-term costs of disability benefits? In Alabama, a State Senator recently proposed changing the workers’ compensation laws to reduce long-term medical benefits. Such a proposal does absolutely nothing to reduce costs. It merely shifts those costs from the insurance carriers to the taxpayers. It benefits insurance companies and hurts the rest of us. The real answers are quality medical care and genuine vocational rehabilitation. In Alabama, where the workers’ compensation carrier gets to pick the doctor, too many injured workers don’t receive adequate care. In fact, it seems as if some carriers have an entire process devoted to getting the worker quickly released by the physician without needed treatment. While this may save the carrier money, it results in huge costs to our communities burdened with the lack of results. In addition, Alabama’s workers’ compensation system provides no real requirement of genuine vocational rehabilitation. Most injured workers I’ve helped want to return to work. They want a real job. The system could do much better in giving them that opportunity. Even if it cost a little more now, the long-term results would be much better for everyone.

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The Alabama Legislature Needs to Address Permanent Partial Disability Benefits in a Fair and Just Manner

Workers’ compensation benefits in Alabama are calculated based upon a workers’ average wage and his level of disability. Yet, regardless of your wage, Alabama law caps benefits for a permanent partial disability at $220 per week. Consider for a moment the impact of this limitation. For example, a worker earning $40,000 a year has a gross weekly income of almost $770 per week. If that worker was injured in a plant explosion and suffered a 99% disability, they would get only $220 a week maximum. In the case of our plant explosion injury, this is less than a third of that worker’s weekly earnings before suffering a devastating injury that made it difficult to find any work in the future. What’s worse, the benefits for a partial disability (anything less than 100% disability) are payable only for a maximum of 300 weeks. In reality, these small benefits will end long before the impact of such a disabling injury.

When I tell injured clients who have spent their lives working hard jobs and long hours to support their families that benefits are subject to these limitations, they often react in shock and disbelief. Frankly, I still find it difficult to believe this is how we treat our workers and their families.

When did the Alabama Legislature place this $220 cap on benefits for a partial disability? In 1985! While the cost of providing for a family has risen greatly in the last 25 years, the level of support for those having severe disabilities has not changed at all.

For example, the minimum wage in 1985 was $3.35 per hour. Now, it is 7.25 per hour. Yet, the $220 cap has remained unchanged. In 1985, the Federal poverty level for a family of four was $10,903. At the cap of $220 per week an injured worker in 1985 would receive just over $11,400 a year, enough to keep his family slightly above the poverty level. In 2011, the Federal poverty level for a family of four was $22,113. This same benefit in 2010 meant your family would only be at around 50% of the poverty level. Yet, the $220 cap has remained unchanged.

For years, the Alabama Legislature has been unresponsive to this issue which keeps Alabama families in poverty. One of our current appellate judges wrote the following during his prior years as a private practice attorney:

workers’ compensation strives to be the most humanitarian of possible damages – distribution schemes. Leaving the injured worker to the care of the public organizations or private charities may stigmatize the disabled employee. Workers’ compensation, on the other hand, provides benefits based on the employee’s contribution to society through his or her employment. A beneficiary of workers’ compensation is always someone who has participated in the economic growth of society. Thus, workers’ compensation recognizes the injured employee’s worth as a valuable part of the community.

1 T. Moore, Alabama Workers’ Compensation, Sec. 2.3 (1998).

The cost of permanent injuries will be paid by someone. Will it be paid from the insurance plans that have received premiums year after year for this coverage? Or, will it be paid by us as taxpayers? When our legislature caps an injured workers’ benefits far below the poverty level, then it is merely shifting the cost from these insurance companies to the rest of us.

Currently, Alabama State Senator Arthur Orr has introduced a bill (SB77) to increase the $220 cap to $240 a week. This remains far below the poverty level for a working family. Now, you may think that any increase helps. As the old saying goes, “the devil is in the details.” In return for this small increase, Senator Orr has also written into his proposal a tremendous cap on workers who are totally disabled. Very few workers are totally disabled from an accident. However, these are the individuals who need the protections of our system the most. In addition, his proposal also seeks to cut off medical benefits after certain time periods. So, in reality, the $20 a week increase for at most 300 weeks, comes at a heavy price. In exchange, the most injured are left in a worse position both medically and financially. That’s far too great a price for us all to bear.

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Workers’ Compensation Is Often Not Enough

If you have practiced personal injury and workers’ compensation law for any length of time, you know that workers’ compensation benefits often do not fully compensate severely injured people for their damages. In addition, our workers’ compensation system typically immunizes from punishment those businesses which recklessly break safety rules at the expense of their own employees. Our system is much better than the sweatshops which existed 100 years ago. However, it still falls short in handling the cases involving the most serious injuries or most dangerous work places.

A few days ago, Pennsylvania attorney Max Kennerly of the Beasley Firm wrote an excellent commentary on this topic. While workers’ compensation laws are different in each state, they share many common aspects. His commentary has a lot of application to Alabama as well. Alabama’s compensation laws also limit benefits in ways that often prevent injured workers from being fully compensated for their injuries. Through the years, I have had many discussions with clients about these issues. It is very important that an injured individual seek legal advice from an experienced attorney in their state who can provide guidance concerning these important and often complex issues. The attorney should fully understand Alabama’s complex system of workers’ compensation benefits.  The attorney should also be experienced in handling other personal injury litigation as there may be a party separate from the employer that may be at fault and owe damages for the injury.  With that said, Max has written a good commentary about the issues impacting workers in many states.

When Workers’ Compensation Isn’t Enough After A Wrongful Death

His commentary is well worth a read.

 

 

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Will Alabama See a Texas-Sized Workers’ Compensation Problem?

If you want to understand the brick wall facing injured workers seeking medical treatment in some states just read the recent article published in the ABA Journal.  The title says it all —

Insult to Injury: Texas Workers’ Comp System Denies, Delays Medical Help

The article begins by telling the story of a Deputy Sheriff who faced a nightmare of denials and delays in his medical care after being shot while in the line of duty. Those issues included the carrier even claiming the emergency helicopter ride to the hospital for life-saving care was not necessary.

This is not acceptable. The article paints a picture of Texas where the system may be at its worst. However, these problems are not unique to Texas. They occur in Alabama as well. In the last few years, they have progressively worsened.

The primary purpose of workers’ compensation laws is to rehabilitate injured workers so they may return to gainful employment if possible. More and more, we are losing our focus on this purpose. I hear it from my clients daily – “I want to work. I have to get medical treatment.” Yet, they are often frustrated by a system that seems to work against providing medical care.

Clearly, the workers compensation carriers are cutting their costs at the expense of those with serious injuries. Yet, I would not call this a cost “saving” measure. Instead, it is a cost “shifting” measure. The reality is, workers compensation carriers are shifting the costs from themselves to the rest of us. Medical costs for work-related injuries should be paid out of the large premiums collected by carriers. Instead, when legitimate claims are denied or delayed, others shoulder those costs. As taxpayers, we often pay those costs through programs such are Medicare or Medicaid. On another level, families sometimes become overburdened by the costs of getting basic care and the loss of income while out of work.

The article quotes a recently retired Texas official who spent his career handling workers compensation issues and best expressed the carrier misconduct that frustrates injured workers and the medical system so greatly. According to this official:

Sometimes they just create a controversy as to whether they owe on a claim.

What are some of the common actions taken by carriers to create a bad reason for denying care? What practices are used to wrongfully deny or delay medical treatment to injured workers? Here are a few:

  1. Claim A Pre-Existing Problem. I have written about this issue previously. Don’t simply accept such a denial if you were able to do your job before suffering a work-related injury. It is not necessary that you have been in perfect health before that injury.
  2. Bury The Doctor in Paperwork. Doctors should spend most of their time treating patients not completing forms. I have seen far too many cases where the doctor eventually became frustrated and simply gave up because of the level of paperwork required for a claim to get approved. If your doctor has talked to you about your injury and the need for medical care, then he has most likely put those opinions in your medical records. That should be sufficient.
  3. Use The “Utilization Review” Process. Alabama law has an administrative review process that was created to evaluate medical issues that are unclear for a variety of legitimate reasons. Yet, carriers often use the review process as a means to delay or deny legitimate care. How is this process abused? Sometimes, the carrier will use it to place extra paperwork burdens on the treating doctor. Sometimes, the carrier will pay another medical provider for a negative opinion about the requested medical care. This is called “peer review.” However, it is really just a negative report purchased from someone who never examined you, may not have seen all your records, and may not even be the right type of specialist for your injury. You don’t have to accept the delays or denials of this process. Instead, you can seek a remedy in court in Alabama.
  4. Employ A Bad Case Nurse To Work The System. Let me start by saying that there are plenty of good nurses that try to help injured workers navigate a difficult medical system. The bad ones gather information to use against you, try to manipulate the doctors, and work to slow the process. Good or bad, they all approach with a smile and promises of help. Since you cannot tell the difference, my advice is to act with caution. Be friendly but do not provide personal information. Don’t discuss your family, job history, finances, or other health issues and injuries. Keep your discussions to scheduling your next appointment and making sure the treatment requested by the doctor is getting approved quickly.
  5. Require Multiple Opinions. Alabama law does give the workers compensation carrier some rights to get a second medical opinion. However, some carriers abuse this limited right by requiring you to get multiple opinions until the carrier gets one it likes. Another way some carriers abuse this right is by using it as a means to switch your care from a doctor you may like to one more favorable to the carrier. The carrier cannot legitimately do that and you should not accept it.

Too often employees suffering significant injuries are left without proper medical care because of carrier misconduct. That is not acceptable. That is why it is so important to stay alert to these issues that benefit the bad carriers at the expense of everyone else.

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